Wednesday, 9 December 2015
Assisted Decision-Making (Capacity) Bill 2013: Committee Stage
I propose to delete the definition of "appointer". It is a consequential technical amendment that should have been made in tandem with an amendment made to the definition of "relevant person" on Report Stage in the Dáil. References to "appointer" were deleted from the definition of relevant person and, as such, a definition of "appointer" is no longer required in the general interpretation section.
So there is no need for a definition for somebody who does not take part in the Bill. That is fine. However, I will say this only once to the Minister of State. This whole Bill is dreadful in a sense. I do not blame the Minister of State. I blame the Department and the draftspeople. This is the third or fourth time we have had Government legislation with several hundred Government amendments after it has been passed by the Dáil. I never recall anything like this previously in nearly 30 years in Seanad Éireann. There is always a big rush coming up to Christmas, but I never remember anything like this.
There were more than 300 amendments to the Legal Services Regulation Bill, including amendments to amendments that were made a week previously. It is horrendously bad conduct of business. Here is another one with a couple of hundred Government amendments. I know some of them just remove one word such as getting rid of the "to" in "to appoint". For God's sake, those are such obvious drafting matters that they really should have been taken care of before the Bill was presented to the Dáil. If they were not, surely to God, they should have been amended in Dáil Éireann.
However, on the other hand, of course, what a wonderful thing that we managed to preserve Seanad Éireann. Where would the Minister of State be without the Senate? Where would her 200 and something amendments be? They would be floating around in mid-air and she would have to go back to the Dáil and do all kinds of high jumps and I do not know what else.
I am making a protest on behalf of doing good business. I ask the Minister of State to take it back to the draftspeople and her colleagues and all the rest of it. I see absolutely no reason for this Gadarene rush every single Christmas. That is bad enough, but to have three or four Bills with a couple of hundred Government amendments after being through the Dáil, and in the case of one of the others through the Senate and amended in Committee to be followed by 300 Report Stage amendments, is absolutely unheard of and scandalous.
That is all I shall say on the matter. I feel it very deeply. We should do our business in a proper and business-like manner that allows everybody participate and has the orderly progress of legislation through both Houses of the Oireachtas. I make it clear that I am not pinning personal responsibility on this Minister of State. It is a feature across Departments and seems to particularly hit the Department of Justice and Equality - for what reason I just do not know. I believe this is also a Department of Justice and Equality Bill. This is the third Bill we have had from the Department of Justice and Equality - the third Bill from the same Department. I rest my case.
Senator Norris has tabled some good amendments to the Bill. However, I want to approach this matter from the other side. Senator Norris is saying that if people come with good ideas after the Bill is published the Minister cannot listen to anything and it is passed in the Dáil, end of story. Having the Senate here leaves the Minister open to accept good amendments when they come. So really----
Can you clarify something for me? I am a little bit of a novice here and maybe a slow learner. On Committee Stage, is it not still possible, even if they are grouped, for one to speak to a specific amendment if one so wishes?
I say to Senator Norris that this particular Bill is probably the most widely consulted Bill of all time. People in the Visitors Gallery will be conscious of that fact. It is a long time in drafting. It is reasonable to say that it is an entirely different Bill from the one with which we started. It does not look anything like it did at the outset and even at this stage there are still amendments to be made. This legislation will affect each and every one of us in whatever position or circumstances we find ourselves at different stages of our lives and I hope it will be to our benefit.
In addressing amendments Nos. 2, 7,19 20, 69, 77, 143 to 145, inclusive, and 148, 170 to 193, inclusive, as already outlined by the Cathaoirleach, I am proposing a suite of amendments to Part 7 of the Bill which provides for enduring powers of attorney. The provisions on enduring powers of attorney have remained for the most part untouched since the Bill was published in July 2013. Part 7 of the Bill largely restates the provisions of Part 2 of the Powers of Attorney Act 1996. The proposed amendments are required to align the provisions with the UN Convention on the Rights of Persons with Disabilities and current international best practice. The proposed amendments are also required for textual consistency and alignment with the rest of the Bill. The House will see that many of the proposed new sections mirror provisions already in other parts of the Bill.
The amendments will strengthen the safeguards against attorneys acting outside the authority given to them, address potential risks of abuse and exploitation of donors and increase protection for the rights of donors. The proposed amendments provide for attorneys to be accountable and held responsible for their actions. I am proposing to delete sections 50 to 64, inclusive, and replace them with a revised, simplified text and additional sections that provide for more detailed provision in relation to reports by attorneys, complaints against attorneys and offences relating to enduring powers of attorney.
Some of the new sections specify requirements such as notification requirements that would otherwise be left to regulations and were included in Schedules 1 and 2 to the Bill. Thus the main requirements for executing and registering enduring powers of attorney are now contained in primary legislation.
One of the main substantive changes to Part 7 is that the director will not register enduring powers which have been created under the 1996 Act but have yet to be registered. I have received legal advice stating that it would not be possible for the director to register these enduring powers under this Bill. They will have to be registered under the 1996 Act by the Office of the Wards of Court, which is the current system. However, the attorneys appointed under these enduring powers and all other powers registered under the 1996 Act will be subject to the new complaints and offences provision I am proposing to insert by way of amendments Nos. 188 and 192. I believe that the number of executed but not yet registered enduring powers under the 1996 Act will be small.
Amendment No. 2 revises the definition of "attorney" in line with the amendments to Part 7 of the Bill.
Amendment No. 7 is similar to amendment No. 2 in that it revises the definition of "enduring power of attorney" in line with the proposed amendment to Part 7 of the Bill. It also inserts a definition for "enduring power" under the 1996 Act which is now required as a result of the proposed amendment to Part 7.
Amendments Nos. 19 and 20 propose to delete the cross-references to Part 7 and Schedules 1 and 2. This is to enable jurisdiction for enduring powers of attorney to be transferred from the High Court to the Circuit Court. The proposal to transfer jurisdiction to the Circuit Court is intended to enable cases relating to enduring powers of attorney to have the benefit of the specialist judges who will be dealing with the majority of matters arising under this Bill. It is also intended to reduce costs for applicants in the interests of encouraging more people to draw up enduring powers of attorney. These remain a good means for the person to express his or her will and preference in terms of who should take decisions on his or her behalf if he or she subsequently loses capacity.
Amendment No. 69 clarifies that a co-decision making agreement will be null and void if there is an enduring power of attorney in force, registered either under this Bill's provisions or the 1996 Act.
Amendment No. 77 clarifies that the disqualification of a co-decision maker if he or she has an enduring power of attorney registered in respect of him or her includes enduring powers of attorney registered under the 1996 Act.
Amendments Nos. 143 to 146, inclusive, amend subsections (9) and (10) of section 33 which allow a person who is the subject of an application to be assisted in court by a court friend if he or she is not legally represented or does not have a decision-making assistant, co-decision maker, decision-making representative, attorney, designated health care representative or other person willing to assist him or her with the proceedings. The amendments clarify that the attorney can be appointed under the Bill or under the 1996 Act.
Amendment No. 148 proposes to delete subsection 34(3) which provides that the court cannot make a declaration as to whether a person lacks capacity to make or revoke an enduring power of attorney. This subsection was inserted in the Bill in order to avoid a person having to go to court routinely to get a declaration of capacity in respect of the making or revoking of an enduring power. A statement from a medical professional and another health care professional on the capacity of the donor is deemed sufficient. However, in drafting the new provisions on objections, complaints and offences under Part 7, it became apparent that the court may have to assess the donor’s capacity in order to investigate an objection, complaint or offence and it could not do so if subsection 34(3) remained in the Bill.
Amendment No. 170 inserts a new section 50. The current section 50 is being deleted and replaced by revised text as part of the overall amendment of the enduring powers of attorney provisions. The interpretation section of Part 7 has been streamlined and provides a definition of key terms in the revised sections of Part 7.
Amendment No. 171 inserts a new section 51. The new section 51 sets out what is an enduring power of attorney, who may appoint an attorney, what authority can be conferred in an enduring power and how the authority must be conferred. The new section 51 reflects provisions in subsections 52(2), 52(5), 54(2) and 55(1) of the Bill as passed by Dáil Éireann. Subsection (2) provides that an enduring power must be conferred in writing in an instrument which is compliant with the other provisions of the Part and any regulations made by the Minister for that purpose. Subsection (3) provides that an attorney may, in the instrument creating the enduring power, appoint an alternate attorney should the original attorney die, be disqualified or is no longer able to carry out his or her duties as an attorney.
Subsection (4) provides that the enduring power will not come into force until the donor lacks capacity in one or more of the relevant decisions which are the subject of the power and the instrument that created the power is registered in accordance with new section 61. Subsection (5) equates to subsection 54(2) of the Bill as passed by Dáil Éireann and provides that where general authority is conferred by a donor on an attorney in respect of property and affairs, the attorney has the authority to do anything on behalf of the donor that the donor can lawfully do.Subsection (6) sets out who is suitable for appointment. The attorney must be capable of performing the functions of attorney as specified in the enduring power of attorney.
On a point of order, I think this section is grammatically inappropriate. The Minister of State actually said "capable of". In the amendment I have, it reads that a person is suitable for appointment as an attorney if he or she is "able of performing". That is nonsense.
Subsection (6) - this is my draft - sets out who is suitable for appointment. The attorney must be capable of performing the functions of attorney, as specified in the enduring power of attorney. The Senator's amendment has a different wording but I assume mine is correct.
Amendment No. 172 inserts a new section dealing with content of instrument creating an enduring power of attorney. New section 52 sets out what has to be included in an instrument that creates an enduring power of attorney. Subsection (1) provides that the instrument must contain statements from the donor, a legal practitioner, a registered medical practitioner, a health care professional and the attorney in relation to various matters, such as the capacity of the donor, that fraud of undue pressure was not used to create the enduring power and that the attorney is willing to undertake the functions of attorney under the power. The provisions were previously contained in section 52(4) which covered what may be included in regulations to be made by the Minister.
New section 52 makes it obligatory to have such statements included in an instrument. It also provides for an additional safeguard by requiring statements by two different professionals as to the capacity of the donor to understand the implications of creating such an enduring power. One of the statements must be from a health care professional, such as a social worker, so as to not be too reliant on the medical assessment of capacity. Subsection (2) is a new provision specifying details that must be included in the instrument creating the enduring power of attorney that would otherwise be left to regulations.
Subsection (3) is a new provision, complementing subsection (4). Subsections (3) and (4) mirror provisions introduced into the co-decision-making Part on Committee and Report Stages in the Dáil. The NDA advised that the Bill needs to provide for situations where due to literacy issues, blindness, dexterity, etc., a person is unable to sign a document. The proposed provisions that will apply where a person cannot sign the document accords with advice that such a situation would require the combined input of the donor, the attorney, the substitute signatory and two witnesses.
Subsection (4) is a new provision, complementing subsection (3). It tightens the provisions regarding the witnessing of an instrument creating an enduring power. Similar to section 14(7) in the co-decision-making Part, a further safeguard has been inserted which provides that an employee or agent of the attorney may not be a witness to an instrument creating an enduring power of attorney. It also requires that at least one of the witnesses is not an immediate family member of the donor or the attorney. The requirement that at least one witness is not an immediate family member is to provide an additional safeguard so that an independent person must be involved as a witness. This is to reduce the risk of a donor being pushed by family members into conferring an enduring power of attorney against his or her wishes.
Subsection (5) is a new provision that requires a donor to specify in the instrument creating the enduring power if the attorney is to be paid for performing the functions of attorney, what functions he or she is to paid for and how much he or she is to be paid.
For clarity subsection (6) provides a definition of immediate family member to include a spouse, civil partner, cohabitant, child, parent, step-parent, a grand-parent, an aunt, uncle, nephew, niece or immediate in laws of the appointer or co-decision-maker. The same definition is found in the corresponding subsections in Part 4 on co-decision-making and Part 8 on advance health care directives.
Amendment No 173 inserts a new section dealing with notice of execution of an enduring power of attorney. New section 53 sets out the notification requirements in relation to the execution of an enduring power of attorney. It is a new provision that requires the donor to give notice of the execution of the power to all close family members, such as spouse and children over 18 years of age and any decision-making supporters that the donor may have, such as a decision-making assistant or co-decision-maker. It also allows the donor to name two other persons whom he or she wishes to inform of the execution of the enduring power. The provisions in new section 53 specify requirements that would otherwise would have been left to regulations.
Amendment No. 173 inserts a section dealing with scope of authority - personal welfare decisions.
May I point out, a Cathaoirleach, that there are 24 pages of these amendments. We have already been here for about ten minutes with the Minister of State explaining these sections. They are not all as closely related as people think. How can one possibly keep up-----
It is legislation on which there has been extensive consultation. What we are doing now is amending it again to make sure we get it right. Just because the Senator and I have not done it before does not mean it is not the right thing to do.
Amendment No. 174 inserts a section dealing with scope of authority - personal welfare decisions. New section 54 replicates subsections (2) to (7), inclusive, of section 53 and of the Bill as passed by the Dáil. It sets out the scope of authority of an enduring power of attorney in relation to personal welfare matters. Subsection (1) sets out the limited conditions where an attorney may restrain a donor. As with all other interveners restraint by attorneys is to be tightly regulated and only used in limited circumstances. The situation has to be an exceptional emergency in which there is an imminent risk of serious harm to the donor or to another person. Subsection (2) defines ‘‘restrains’’ for the purposes of this section. It includes the definition of chemical restraint in that definition. Restraint is deemed to apply when a person administers a medication with the intention of modifying or controlling the relevant person’s behaviour so that the person will become compliant. This amendment was inserted on Report Stage in the Dáil. Subsection (3) requires that the restraint be immediately ceased when no longer necessary to prevent the imminent risk of serious harm to donor. Subsection (4) provides that subsections (1) to (3) shall not constrain the generality of section 69 of the Mental Health Act 2001 or of rules made under that section. Subsection (5) prevents a donor from authorising an attorney from making a decision relating to the refusal of life-sustaining treatment or from making a decision that is the subject of an advance health care directive by the donor.Subsection (6) provides that if an enduring power contains a relevant decision relating to the refusal of life-sustaining treatment or a decision that is the subject of an advance health care directive, the power is null and void to the extent that is relates to that decision.
Amendment No. 175 inserts a section dealing with the scope of authority relating to property and affairs. New section 55 replicates, with minor amendments, section 54(3) to (5), inclusive, of the Bill as passed by Dáil Éireann. It sets out the scope of authority of an enduring power of attorney in relation to property and affairs. Subsection (1) provides that the attorney may, if specific provision to that effect is made in the power, act for his or her own benefit or that of any other person’s benefit to the extent provided for in the power. Subsections (2) and (3) cover the giving of gifts by the attorney on behalf of the donor. The donor must specify in the power that the attorney may give gifts, while subsection (3) limits these gifts to customary occasions and to persons, including the attorney, to whom the donor would have likely given gifts in the past. The value of the gifts must be reasonable, taking the circumstances of the donor into consideration.
Amendment No. 176 inserts a section dealing with the application of joint and joint several attorneys. New section 56 deals with the application of the Part to joint and several attorneys. The provisions in relation to joint and several attorneys were contained mainly in section 64 and the Second Schedule to the Bill as passed by Dáil Éireann. Subsection (1) allows a donor to appoint more than one attorney. The donor must specify in the enduring power of attorney whether such multiple appointments are made either jointly, jointly and severally, or jointly in some matters and severally in other matters.
Subsection (2) sets out what happens if one of the attorneys who was appointed to act jointly with another attorney is disqualified, dies or lacks capacity to carry out his or her duties as attorney. With regard to joint and several attorneys, where one dies, lacks capacity or is disqualified, the remaining attorney or attorneys may continue to act, unless the instrument creating the enduring power provides to the contrary.
Amendment No. 177 inserts a section dealing with persons who are not eligible to be attorneys. New section 57 equates to section 52(6) of the Bill as passed by Dáil Éireann. Section 52 deals with a number of issues relating to the characteristics of an enduring power and who may be appointed as an attorney. Subsection (1) sets out who is not eligible for appointment as attorney and replicates similar provisions in assisted decision-making, co-decision-making and advance health care directives. Subsection (2) replaces section 52(7) and prevents financial issues such as bankruptcy from being a barrier to being an attorney in respect of personal welfare matters.
Amendment No. 178 inserts a section on the disqualification of an attorney. New section 58 equates to section 52(7), (8), (10), (11) and (12). For clarity and consistency with other Parts of the Bill, the provisions relating to disqualification have been brought together in one section.
Amendment No. 179 inserts a new section on the functions of the court prior to registration. New section 59 replicates section 56. It enables the court, before the registration of the enduring power, to exercise powers it would have been able to exercise once a power had been registered, if it has reason to believe the donor may lack or shortly may lack capacity. An application to the court under this section may be made by any interested party whether the attorney has made an application for registration of the instrument.
Amendment No. 180 inserts a new section on application for registration of an instrument creating an enduring power. New section 60 replicates the existing section 57 and incorporates Schedule 1 to the Bill. However, additional text has been added to incorporate provisions that were to be provided for by way of regulations and to strengthen the safeguards against the premature or fraudulent registration of an enduring power. It sets out the obligations placed on the attorney when he or she has reason to believe the donor lacks capacity in relation to one or more relevant decisions which are the subject of the enduring power. Subsection (1) provides that an attorney must make an application to register the instrument creating the power of attorney as soon as he or she believes the donor lacks capacity.
Subsection (2) provides that the application for registration shall be made in a form that is to be prescribed by the Minister. The fee to accompany the application shall also be prescribed in regulations. Subsection (3) requires the attorney to notify specified persons of the fact that he or she is applying to the director to register the enduring power of attorney. The list of those who have to be notified mirrors the list contained in new section 53 which lists those who have to be notified of the execution of an enduring power. Currently, section 57 and Schedule 1 to the Bill replicate the provisions of notification found in the 1996 Powers of Attorney Act. The provisions and the accompanying regulations have been a source of confusion and conflict in recent years. In order to simplify and to provide protection against premature or fraudulent registration, I propose that all close family members be notified by the attorney that he or she intends to register the enduring power. Those notified will then have the opportunity to object to the registration if they are of the opinion that the attorney is not suitable or that undue pressure was placed on the donor to choose the appointed attorney. The amended notification provisions in this new section, coupled with the new notification requirements at execution stage, should, I hope, ensure all of those who need to be informed of an enduring power of attorney are notified.
Subsection (4) replicates section 57(3). It provides that the attorney may, before applying to register the enduring power of attorney, apply to the court for a determination in relation to the validity of the power. Subsection (5) replicates section 55(2). It allows an attorney, once he or she has applied for registration, to take action under the enduring power to maintain the donor, to prevent loss to the donor’s estate, to maintain the attorney or other persons so far as the donor might be expected to do so or to make a personal welfare decision that cannot be reasonably deferred until the application has been determined.
Subsection (6) is a new provision that requires an attorney who has taken action under subsection (5) to report these actions to the director. Subsection (7) sets out what needs to accompany the application to register an instrument creating an enduring power. Similar to the requirement in relation to the execution of an enduring power of attorney, statements on the donor’s lack of capacity will now be required from two different professionals, one of whom must be a health care professional such as a social worker.
This shows the difficulty in dealing with so many amendments in this way. I am trying to understand the legislation as it goes through the House and it is extremely difficult because we are referring to sections not included in the Bill, as it stands. There are further proposed hypothetical amendments. I am trying to understand the Bill in order that I can do a good job as a legislator. I am sorry if my whispering distressed Senator thingamajig.
Subsection (8) sets out what will happen in relation to registration if more than one attorney is appointed under an enduring power of attorney.To be of help to Senator David Norris, the entire section is about the enduring power of attorney.
Unfortunately, because there is a possibility it could be challenged, we have had to ensure there are safeguards in place. Because we will be moving to a new system, it is important we get it right in order that we will not face a challenge. Perhaps it might have been better to explain this at the outset.
The entire section is about the enduring power of attorney.
Amendment No. 181 inserts a new section - registration of an instrument creating an enduring power of attorney. The new section 61 replicates section 58(1) of the Bill and provides in more detail for how the director shall review an application for registration. It also provides additional provisions incorporating an appeals mechanism in relation to the decisions of the director on the registration of an enduring power. Subsection (1) lists the criteria that the director must consider when reviewing an application to register an enduring power.
Subsection (2) provides that, subject to any objection received, where the director is satisfied that the application is in order, he or she shall register the instrument creating the power.
Subsection (3) provides that, where the director is not satisfied that all is in order with an application, he or she shall notify the attorney and the donor of his or her view and give the attorney and the donor the opportunity to respond. This is a new provision that allows the attorney or donor to provide further material or evidence to back up the application for registration because we cannot rule out the possibility of vexatious complaints about who is chosen.
Subsection (4) is complementary to the new subsection (3). Following the receipt of further information or material as provided for in subsection (3), the director can do one of two things - register the instrument if he or she if satisfied that the criteria listed in subsection (1) have been met or refuse to register the instrument because the criteria are not deemed to have been met.
Subsection (5) is a new provision. It provides for an appeals mechanism for an attorney whose application to register is refused. The attorney has 21 days from the time he or she is notified that the application has been refused to appeal the decision of the director to the court.
Subsection (6) is a new provision and complementary to subsection (5). It sets out what the court may do upon an appeal under subsection (5). It may require the director to register the instrument, or affirm the director’s decision to refuse to register it or make an order or declaration, as it considers appropriate.
Subsections (7) and (8) provide for the director to supply an authenticated copy of the instrument to the attorney and the donor. The copies authenticated by the director will be evidence of the contents of the instrument and the date it came into force. New section 60(3) provides that the attorney shall send them copies of the enduring power of attorney when notifying them of his or her intention to register the power.
Amendment No. 182 inserts a new section – effect and proof of registration. The new section 62 replicates section 59(1) and (2). Subsection (1) provides that once an instrument has been registered, a revocation of power will not be valid unless it is confirmed by the court. A disclaimer by the attorney will not be valid except on notice to the donor and with the consent of the court. Once registration has taken place, the donor cannot extend or restrict the power, nor can he or she give a valid consent or instruction by which the attorney will be bound. Subsection (2) provides that subsection (1) applies for so long as the instrument is registered, regardless of whether the donor lacks capacity for the time being.
Amendment No. 183 inserts a new section – objections to registration. The new section 63 replicates and expands on section 58(2), (3), (4) and (5) of the Bill as passed by Dáil Éireann. It allows for objections to be made to the registration of an instrument creating an enduring power of attorney. It also provides for additional provisions that set out a mechanism by which the decisions of the director on whether an objection is well founded can be appealed to the court.
Subsection (2) sets out the grounds on which an objection to the registration of an instrument creating an enduring power of attorney may be made. It also allows for the possibility of a fee being charged which will help to filter out frivolous or vexatious objections. Section 46 of the Bill, as published, contains some similar provisions. Subsection (3) sets out the required actions of the director in regard to objections, while subsection (4) sets out the role of the courts in this regard. Subsection (5) provides that a person may appeal the decision of the director that his or her objection was not well founded to the court, while subsection (6) sets out the role of the court in this regard.
Amendment No. 184 inserts a new section – register of enduring powers. The new section 64 replicates section 60(1), (2) and (3) of the Bill as passed by Dáil Éireann. It mirrors similar revised provisions in regard to other registers maintained by the director. Subsections (1) and (2) require the director to maintain, in such form as he or she considers appropriate, a register of enduring powers of attorney that have been registered by him or her.
Subsection (3) revises the current provision that provides for the register to be open to inspection by the public. With a view to the need for data protection, particularly as enduring powers of attorney are essentially private arrangements between individuals, it is not considered appropriate to make the register open to the general public. Where it is necessary for a person or a body to know of the existence of an enduring power or to have access to some or all of its contents, the director will allow the appropriate level of access.
Subsection (4) allows the director to issue an authenticated copy of an enduring power or part thereof to a body or class of persons that shall be designated by regulation. Subsection (5) provides for the maintaining of a record of those who have had access to the register or who have been sent an authenticated copy of an enduring power.
Amendment No. 185 inserts a new section – revocation and variation of enduring power. The new section 65 replicates and expands on the current section 62 of the Bill. Additional subsections provide for provisions that were to be provided for by regulation. Subsection (1) clarifies that where a donor has capacity, an enduring power of attorney may be varied or revoked anytime prior to its registration. Subsection (2) provides that the variation or revocation must be done in such form as prescribed by the Minister. Subsections (3) and (4) set out the administration requirements for the variation and revocation of an enduring power of attorney by a donor. It is not necessary for the donor to go to court to revoke an enduring power that has not been registered. Subsections (5) and (6) provide that a donor may revoke an enduring power that has been registered if he or she has the capacity to do so. However, the court must confirm the revocation for it to be valid.
Amendment No. 186 inserts a new section – disclaimer by attorney. The new section 66 replicates section 52(14). It provides that a disclaimer of an enduring power that has not been registered by the attorney will not be valid except on notice to the donor. A disclaimer of an enduring power that has been registered by the attorney will not be valid except with the consent of the court.
Amendment No. 187 inserts a new section – reports by attorneys. The new section 67 replicates and expands on section 60(4) of the Bill as passed by Dáil Éireann. It provides for greater oversight of attorneys by the director, especially in regard to the financial affairs of donors. Subsection (1) is a new provision that requires an attorney who has been given the authority by the donor to make decisions on his or her property and affairs to submit within three months of the registration of the enduring power a schedule of the donor’s assets and liabilities and projected statement of the donor’s income and expenditure to the director.This is good practice on behalf of the attorney because he or she will need to be aware of the donor's incomings and outgoings in order to effectively manage the donor's property and affairs. It also ensures that the director is made aware of any substantial estates that may require closer oversight.
Subsection (2) requires the attorney to keep proper accounts and that such accounts be available for inspection by the director or special visitor. Subsection (3) requires the attorney under a registered enduring power to submit a report as to the performance of his or her functions under the enduring power to the director within 12 months. Subsection (4) provides that reports submitted by the attorney must be in a form to be prescribed by the Minister and must include details of all expenses and remuneration paid or to be claimed by the attorney. Subsections (6), (7) and (8) are new provisions that set out what must happen when an attorney does not comply with his or her reporting obligations. This includes a provision that allows the court to determine that the attorney should no longer act as attorney for the donor concerned. Subsection (9) defines the term “relevant period”. Subsections (10) and (11) are new provisions that apply the reporting obligations set out in this section to attorneys of enduring power that had been created under the 1996 Act but have not been registered yet. Subsections (12) and (13) are also new provisions that provide that the functions of the director, the investigations of the director and the appointment of special and general visitors by the director in relation to the reporting obligations of an attorney include attorneys and owners under enduring powers created under the 1996 Act.
Amendment No. 188 inserts a new section 68, complaints in relation to attorneys, into Part 7. The new section mirrors section 27, which deals with complaints against co-decision-makers. It sets out new provisions enabling complaints about the suitability or conduct of attorneys. Complaints against attorneys appointed under the Bill and attorneys appointed under the 1996 Act may be investigated by the director under this section. Provision is made here for the director, having satisfied himself or herself that a complaint is well-founded, to apply to court for a determination. An additional safeguard is provided by allowing the director to investigate a matter and bring it to court notwithstanding that no complaint has been received.
Amendment No 189 inserts a new section 69, applications to court. Subsection (1) sets out what the court may do where the director makes an application to it in relation to whether he or she should register an instrument creating an enduring power of attorney. Subsection (2) sets out the criteria that the court must take into consideration when determining if an attorney is suitable for appointment as an attorney. Subsection (3) replicates section 61(2). The court can determine the meaning or effect of the instrument. The court may give directions with respect to the personal affairs and the management or disposal of the donor’s property or affairs. It can also decide on the rendering of accounts and on the production of records kept by the attorney, and on the remuneration and expenses of the attorney and consent to a disclaimer by the attorney. Subsection (4) replicates subsection (3) of section 61. It sets out the circumstances in which the court must notify the director of its directions, requirements, consent or authorisation made under subsection (3) and requires the director to monitor the giving of effect of such directions, requirements, etc., by the attorney.
On a point of order, I know the work the Minister of State has put into this but why did we not get a copy of her notes? It is very hard for her to read it out and it is very hard for us to take in the provisions outlined because we did not get time to read it. I accept almost all of what the Minister of State is saying but is there a reason we did not get her notes beforehand?
Amendment No 190 inserts a new section 70, removal of instrument from the register. It mirrors provisions in section 26 that deal with the removal of co-decision-making agreements from the register following revocation. Subsection (1) sets out the circumstances in which the director shall remove from the register of enduring powers an instrument that has been revoked or where the attorney has been disqualified. Subsection (2) sets out what happens in regard to the register when there is more than one attorney appointed under the enduring power of attorney or where the donor has nominated an alternative attorney.
Amendment No 191 inserts a new section 71, regulations. This new section pulls together in one section the matters that must be prescribed by the Minister. These are currently scattered throughout the part.
Amendment No. 192 inserts a new section 72, offences in regard to enduring powers of attorney. It mirrors similar sections in the co-decision-making and the advance health care directives parts. A person who uses fraud, coercion or undue influence to force another person to make, vary or revoke an enduring power will be guilty of an offence. A person who makes a statement in connection with the creation or registration of instrument creating an enduring power, which he or she knows to be false will also be guilty of an offence. This is an important protection for a donor.
Amendment No. 193 inserts a new section, transitional provisions. New section 73 provides for the transitional arrangements between the Bill and the Powers of Attorney Act 1996. It provides that, following the commencement of this part, no further enduring powers of attorney may be created under the 1996 Act. That is fairly straightforward.
Yes, on a human level but what about the endurance of the House? It is not to be applauded on a legislative level. As Senators demonstrated by their comments, the Minister of State showed some signs of physical stress in reading out all this, and one’s heart goes out to her. We have had nearly an hour of the Minister of State. These amendments compose almost the heart of the entire Bill. They account for 22 pages out of 55. That is half the physical number of amendments. This is a huge swathe to take in one gulp. One could not really take it in. With the greatest respect, the Minister of State made a couple of errors in numbering and so on. What can we as ordinary Senators do about this? It is a real difficulty. I sincerely hope that no legislation of this kind will be introduced again ever in the Seanad.
It is very important to consult with people and I welcome the fact that the Bill has been amended in consultation, although not as fully as some of us would like but there is no excuse for the kind of grammatical amendments turning up here two years later and after it has been passed by the Dáil. These should have been spotted straight away. It is a grotesque offence to Seanad Éireann that these kind of drafting errors are sustained in the Bill and have to be addressed at this stage.
I have some comments on the amendments as I followed them. I apologise to Senator Moran if I interrupted her but I was desperately trying to find out exactly where these things fitted in because some do not deal with sections in the Bill or in the amendments.They are all over the place and it is impossible to find out what section is qualifying another. I was trying to figure this out so I could do my job here.
Amendment No. 171 indicates "Subject to the provisions of this section ... a person who has attained the age of 18 years ... may appoint one or more suitable persons" to act as an attorney. What about people under that age? What about somebody who is 17 and a half, for example? Will the Minister of State reassure us that the guardian ad litemwill be called into play for minors? They should certainly have some protection as they are more vulnerable than an adult. We are talking about people who have attained the age of 18 years but what about people who are under 18?
Amendment No. 184 deals with the register of enduring powers and subsection (2) indicates "The Register shall be in such form as the Director considers appropriate." I wonder what that means. Does it mean it should be in a ledger or in a computer? Does it give overwhelming power to the director to say that it can be done whatever way he or she likes? I would have thought that a register of enduring powers of attorney would be a factual matter. It is clear what it should include. I am not sure what it means by "in such form as the Director considers appropriate."
This is an enormous bulk of material to consider and it means that virtually half of the Bill is to be discussed in one go.
Yes, and they deal with a large swathe of the Bill. They could have been separated. For example, amendment No. 188 relates to complaints regarding attorneys. It seems there is a certain degree of separation in that issue and it deserves to be teased out separately. This is really pushing at the last minute to get legislation through. It is a very bad process as it minimises our capacity to concentrate our critical scrutiny on legislation and bring out points that need amending.
Cuirim fáilte roimh an Aire Stáit. I share the frustration of Senator Norris. In fairness to him, we have had a number of Bills through the House in the past week and a half with hundreds of amendments coming at the last minute. As legislators, we can see amendments replacing sections and the discussion is on the new sections. It can be very confusing, especially as these numbered amendments only came to us at 11.59 p.m. last night. None of us picked up our e-mails from then until this morning, so it has been quite a challenge to try to get through the amendments.
I want to be specific to issues that have been raised, particularly with regard to advance health care directives. My understanding is these have been affected by the grouping of amendments we are speaking to. They relate to changes to sections 59 and 60 of the Bill as passed by the Dáil. There are concerns being raised with me around advanced health care directives and the provisions are causing a great deal of concern among mental health service users. They feel their human rights will not be respected on an equal basis with others if the treatment choices of those detained under mental health legislation are excluded from the Bill.
I note that the Minister of State is seeking to amend the mental health legislation around the issue of electroconvulsive therapy, ECT, and other harmful treatments, where people are found to be unable to consent, which is to be welcomed. It will only occur if there is a legally binding advance health care directive allowing patients to consent or refuse treatment in advance. It is felt that the changes suggested may affect the issue around advance health care directives. I note that Dr. Fiona Morrissey from the National University of Ireland, Galway, has raised the issue and she states:
The impending legislative provisions discriminate against anyone who may experience mental distress. Given that one in four of us experiences some form of mental distress during our lifetime, any one of us could find ourselves in a position where we become emotionally overwhelmed due to some form of life event and end up in a crisis situation where we are excluded from making decisions in relation to our treatment under this legislation. The proposed legislation specifically excludes the use of legally binding advance health care directives for the treatment choices of those who may be subject to involuntary detention under the Mental Health Act 2001.
Dr. Morrissey believes this is clearly discriminatory under the UN Convention on the Rights of Persons with Disabilities, which the Government is planning to ratify in the near future. The use of differential standards in the legislation reinforces the notion that the preferences of individuals who may experience mental distress are not respected on an equal basis with others and reinforces stigma. In its general comment on article 12, the Committee on the Rights of Persons with Disabilities has stated that state parties have an obligation to require all health and medical professionals, including psychiatric professionals, to obtain the free and informed consent of persons with disabilities prior to any treatment. She also argues that advance health care directives are legally binding during involuntary detention in a number of other jurisdictions, including Germany, and a number of US states and Canadian provinces. Advocacy organisations have urged that laws on advance directives for mental health treatment decisions should operate in exactly the same way as other directives, subject only to legitimate emergency situations, such as when there is an imminent threat to life or others.
The question is about seeking clarification. As Senator Norris has stated, with the grouping and gamut of amendments, we need specific discussion of this issue of advance health care directives. People are concerned that these are being specifically excluded. Will the Minister of State clarify this? Will they be omitted and, if so, what is the rationale for leaving them out in light of this international opinion?
It is very hard not to share the concerns of my two colleagues, Senators Norris and Ó Clochartaigh, with respect to the sheer volume of amendments. The grouping of amendments might need examination in the context of parliamentary reform. There is probably a logic in having a maximum number that may be discussed in one amendment grouping. That said, it appears that these amendments are related, diverse as they may be. They deal with ward of courts and that has never been dealt with. Long before any of us were around here, in the 1800s, the legislation governing wards of court was in place. I do not follow the royal family in England but it was probably Queen Victoria who was in charge. People who needed assistive capacity did not have any money, resources, rights or dignity. This is ensuring that people who needed assistive capacity have all those rights and their money is treated with respect. It is about ensuring their rights are not impugned in any way. I welcome that we have substantial amendments, as they are to improve the legislation. I am sure many issues were identified, not just by colleagues in the Dáil but by officials and people drafting the Bill, as it is such pioneering and ground-breaking legislation. No Government in Irish history has made an effort to tackle it.
Along with colleagues like Senators Bacik, O'Donovan and others, I was a member of the Oireachtas committee on justice, defence and equality that held exhaustive hearings and made significant recommendations in this area. The Minister of State is correct. I am a novice in the Seanad. Senator Norris has been here for 20 years or longer.
In my very brief period I have not come across any legislation that has changed for the better, even in terms of language or the Title, any more than this, with consultation with stakeholders and interested parties. We have seen an imperfect presentation tonight in terms of groupings and so on but what we will have is legislation that is as close to perfect as is humanly possible to ensure that dignity and rights are enshrined in law.We all know that money is the root of all evil. With respect to people who need assisted decision making, we must make sure that their money is protected and respected by the State as much as it is possible for the State to do that. While it is not perfect I sincerely hope this House will not divide on these issues of great importance to citizens who need our support and assistance.
I will be brief also. I agree with respect to the length of time involved. It is very difficult on everybody involved but we are all here with a common aim that we all want to get this right. Like Senator Ó Clochartaigh, I read that article by Dr. Fiona Morrissey at the weekend and I join in asking for clarification on some of the points in it, particularly, as the Senator said, in regard to the mental health service users. I found it interesting that Dr. Morrissey reported that 60% of mental health service users felt that they had no control over future treatment. That is an important point. We are talking about a review in respect of wards of court, and Part 6 of the Bill, and I have had discussions with those in Inclusion Ireland who have expressed some concerns brought to their attention by family members. It is desirable we would have a look at that category. It is always much better if the wards of courts are family members as opposed to a medical person. It is very important to ensure that we do that.
Another aspect is the funds for the wards of court, even though this may not be the legislation under which to raise it. I do not know where that would come in but with respect to funds that are in place for them that have been depleted as a result of the economic downturn, what is in place to ensure that the people who were awarded money are not out of pocket?
I have this awful feeling that we have got off on the wrong foot on dealing with this legislation which has been sought for 30 years. It is a difficult item of legislation to understand. I have been looking at it for two years and the officials have been working on it for even longer. I hope that we are not going to get off on the wrong foot and that this will head towards us doing something for people, including ourselves.
I would point out to Senator Norris that people under the age of 17 cannot appoint an attorney. They have not reached the age of maturity. The Senator probably gathered that. Neither can they be a witness.
No, because they are not at that point. They are not covered by the Bill. With respect to the register to be maintained, I believe that will be done electronically, but it will be very much up to the director. When we come to expand on what that director's duties and role are and where the office will be-----
-----the type of information that needs to be gathered, in the first instance, is extensive. When a complaint is made it needs to be extensive, and, therefore, it would cover all eventualities. I think the Senator will be happy enough with that. On the amendments we are proposing in regard to the enduring powers of attorney, we are simply aligning them with the reforms agreed by the Dáil, where there was exceptional co-operation around this area.
I advise Senator Ó Clochartaigh that we will be dealing with advanced health care directives in Part 8 and I believe his concerns will be dealt with there.
Before I address Dr. Fiona Morrissey's article, I want to state that we have met her. One of the meetings was with the officials and it was of three hours duration. I have also met her and she has put her case. It was an informal meeting. I do not want to mislead anyone, it was not the case that this was something we were discussing but I knew her arguments because I have read her extensive e-mails on several occasions and I have explained to her and others, and officials explained also in great detail at that three-hour meeting, that we intend to deal with the advanced health care directives in regard to the mental health Bill when the general scheme is produced. We believe that is where it should be dealt with. As well as that, the expert group, who have looked at the Mental Health Act for us, has advised that it is where we should deal with it. This legislation is about enabling people to make decisions and it relates to the general scheme of life events, but the specific area of mental health should be dealt with in the Mental Health Act. We are not opposed to that and we have very much taken on board what Dr. Morrissey has said. She is very determined that this would be stitched into this legislation but we do not agree on that and that is the beauty of democracy. We have explained in great detail why it should be in the Mental Health Act rather than in this legislation.
I move amendment No. 3:
In page 10, between lines 24 and 25, to insert the following:" "best interpretation" means the interpretation of the relevant person’s past and present communication (using all forms of communication, including, where relevant, total communication, augmented or alternative communication, and non-verbal communication, such as gestures and actions) that seems most reasonably justified in the circumstances;".
The Minister of State is extremely welcome to the House. Before I speak to this amendment, I want to congratulate her on her work on the mental health (amendment) Bill which seeks to remove the use of coercion in the application of ECT. I acknowledge that a Bill was published by the former Senator, Dan Boyle, as she knows, and I would particularly like to pay tribute to my cousin John McCarthy, God rest him,I can almost hear him using wonderfully colourful language and including words "about time" but it is great that this Bill will be progressing and well done to the Minister of State for doing that.
In association with my colleague, Senator Katherine Zappone----
-----I want to acknowledge the support of NUIG Centre for Disability Law and Policy and Tallaght Trialogue. While most people simply require recognition of their legal capacity and support to express their will and preferences there will still be a small minority of individuals who are not expressing a will and preference in a manner that others can understand. The Bill must establish the lawful response to such circumstances. However, I do not believe that a functional assessment of a mental capacity, and a subsequent denial of legal capacity, is the correct response to these difficult situations. A person in a coma or in a minimally conscious state, for example, will not be communicating their will and preferences to others and may not have made their wishes known in advance through an advanced health care directive or granted a power of attorney to anyone in respect of their relevant decision.In these circumstances decision making assistants, co-decision makers, decision making representatives, attorneys or designated health care representatives may need to make a decision on the relevant person's behalf in accordance with their best interpretation of his or her will and preferences. While the Bill does require all interveners to respect the person's will and preferences as part of the guiding principles included in section 8, further reference to the concept of best interpretation of will and preferences is needed for the hard cases in which it is very difficult to tell what a person's wishes are. The term "best interpretation" needs to be defined in section 2 of the Bill to guide those in the supportive roles I have outlined. Best interpretation of a relevant person's will and preferences means taking into account past express preferences, where known, and includes knowledge gained from family and friends and other evidence available. Best interpretation can also be arrived at in seeking to communicate with the person in every possible way, including by using, where appropriate, assisted and augmentative communication, facilitated communication, signs, gestures and total communication, all of which are noted in the regulations and code of practice.
The use of best interpretation will rarely be an easy task. However, the best interest determinations used currently are similarly difficult in these circumstances. The provisions of Article 12 of the UN Convention on the Rights of Persons with Disabilities are merely shifting these difficult decisions from focusing on judgments existing outside the individual to the individual's own will and preferences. That is why I am trying to insert a definition of best interpretation. We do need to deal with the hard cases, too.
I support Senator Jillian van Turnhout's amendment. It seems important that we have a concept of best interpretation and a definition of it. It should take into account the history and past expressed wishes of a patient who may now no longer be in a position to express them. We should take into account assisted methods of communication, be it nodding, by squeezing a hand or whatever else. One has to be careful, however, about the way in which the family is included because not all families are perfect. We do not want to have families pushing an interpretation that suits them but not the patient.
I was interested to see that the Mental Health (Amendment) Bill 2008 had been introduced in the Dáil, a Bill I had seconded in this House. I remember discussing it with former Senator Dan Boyle and a very nice Progressive Democrats Senator whose name I cannot remember. That was before they dumped them. It was an important move to have the Bill discussed and I was surprised and pleased to see it being introduced in the Dáil on Tuesday.
I echo the support for the amendment which is very important and on which there has been a lot of very good work done. This is obviously an incredibly complex issue, but the express will of the relevant person is certainly paramount. Any mechanism or means that can be used to find out what it is should be used, no matter what state the person is in. There are questions about somebody making an advance health care directive, for example. If he or she decides in an advance health care directive that there are certain treatments he or she does not want to have, surely that must be taken into consideration. It is not just an issue of what he or she would like to happen, but also what treatments he or she would not like to receive.
I commend the Senators involved and the work of the academics who have been supporting it. I lend our support to the amendment.
I thank the Senators involved for bringing forward the amendment. As a practising solicitor, I have some concerns about it from my own experience which includes attending a nursing home to have a document granting power of attorney signed, only to find that the person concerned was not at all happy about signing it. I did not get it signed but two days later in my office I found a signed document granting power of attorney which had been witnessed by the matron of the nursing home. I can assure Senators that the document went into the shredder, which was the appropriate place for it. That is going back many years. I, therefore, have some concerns about how this provision will be interpreted in the sense that different people will give different interpretations to it and the intentions of the person concerned. While I accept that a lot of work has been done on this matter by the Senators concerned and that the issue needs to be looked at, I have concerns.
I did acknowledge Senator David Norris in the Dáil when we got the electro-convulsive therapy Bill through last evening. It will be taken in the Seanad on Thursday, 17 December. I acknowledged the Senator's involvement with that of former Senators Dan Boyle and Déirdre de Búrca. They were the three named Senators.
I also acknowledged Mr. John McCarthy. I am not certain if he would agree with our interpretation of where he is now, but I am sure that if he weas still around, he would, at least, be half happy.
On amendment No. 3, as Senator Colm Burke outlined, it is hugely important that we be very clear about the interpretation of someone's will and preferences. I fully acknowledge that we can never get it entirely right and that there will always be circumstances where we will get it wrong. Mr. John McCarthy's book which is on my shelf constantly reminds me of the human condition. We are human and will get it wrong. I do not know why we are ever that surprised by this.
Senators Jillian van Turnhout and Katherine Zappone have proposed amendment No. 3 to introduce a definition of "best interpretation". I cannot accept the amendment because my entire focus in the Bill is on ensuring people have the ability and are helped as much as possible to make decisions for themselves, sometimes in very difficult circumstances. Section 3 provides that where a person's capacity is being assessed, he or she can be deemed to have capacity if he or she can communicate his or her decision by talking, writing, using sign language, assistive technology or any other means, including by means of a third party who knows him or her well and knows what his or her will or preferences would be in the circumstances. Again, I am not certain people will always get it right, but they can only do their very best in the circumstances.
The provision in section 3(2) encompasses much of what the Senators are seeking to achieve. The proposed definition is somewhat unclear in terms of who would interpret it. One issue about which I have concerns is the idea that gestures and actions should be included, without proper safeguards, in a definition of best interpretation. The decisions which need to be made will often have serious legal consequences for the person concerned or another party. The sale of a house, for instance, may leave the person concerned without a home. It is crucial, given the seriousness of the decision, that his or her will and preferences be absolutely clear. Communication through gestures and actions could be misinterpreted if they were not clearly understood. As Senator Colm Burke says, they could be misinterpreted deliberately. In some cases, non-verbal communication will work. We all know people who are non-verbal but who can make their meaning very clear. We see this every day. In some cases, though, it may give rise to misunderstandings. Therefore, a general definition would need to be workable in all cases.
I suggest it would be more appropriate for the director to provide information on communication methods in a code of practice that would enable organisations to have clear information on how to approach communications which might involve the use of assistive technology or non-verbal communication. For these reasons, I cannot accept the amendment, while appreciating exactly what the Senators are seeking to do. I think we have covered as much as possible. The director will have a further part to play in terms of how non-verbal communication can be interpreted.
I appreciate the Minister of State's reply and her suggestion that the matter be included within a code of practice.I am conscious this legislation is historic and we are jumping forward. My amendment proposes a framework for these hard cases because without it, there will no framework. I appreciate what has been said about safeguards, so I will withdraw my amendment. I will table it on Report Stage and maybe address some of the issues raised. We need a framework to deal with these hard cases, so that we do not have the situation Senator Colm Burke suggested. In the absence of a framework, who will make the interpretation? Where is the guidance for that interpretation? Perhaps it is within a code of practice. I need to consider how best that can be done.
Amendments Nos. 4, 6, 10, 11, 13, 16, 55, 75, 134 and 213 propose to delete the current definitions in the Bill relating to an "approved nursing home", "care service", "relevant facility" and "nursing home or residential facility". Two new terms are proposed as more accurate terms to describe the facilities in which those encompassed by this Bill may be resident. The term "designated centre" is proposed to encompass residential facilities for older persons and persons with disabilities. It is a more accurate term than those currently in the Bill. It is a term already defined in section 2 of the Health Act 2007. It is proposed that it will bring consistency to the terminology used in the Bill. The term "mental health facility" is retained to encompass residential facilities for persons with mental health illness.
It is not appropriate to retain terms, such as "approved nursing home", as they relate to the nursing home support scheme. The facilities encompassed by this Bill are broader than those which come under the nursing home support scheme. The change of terminology will require the consequential amendment of the definition of the "owner" of such facilities. Amendment No. 10 proposes a definition of "owner" which includes the new terms of "designated centre" and "mental health facility".
Amendments Nos. 55 and 75 are consequential on the streamlining of references to institutions. The references proposed are to "designated centres" to encompass nursing homes and residential facilities for people with disabilities and to "mental health facilities". The provision has been redrafted to make its intent clearer as our consultations with disability and mental health stakeholders has suggested that the provision had created confusion. What is proposed is that an owner, a person living with the owner or an employee are automatically disqualified from acting as interveners under the Bill, that is, acting as a co-decision-maker. The exception is where any of them are the spouse, civil partner, cohabitant, parent, child or sibling of the relevant person.
Amendment No. 5 is in the names of Senators O'Donovan, Norris, Healy Eames, van Turnhout and Zappone. Amendments Nos. 5 and 245 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 5:
In page 10, between lines 29 and 30, to insert the following:“ “chemical restraint” is the intentional use of medication to control or modify a person’s behaviour or to ensure a patient is compliant or not capable of resistance, when no medically identified condition is being treated, where the treatment is not necessary for the condition, or the intended effect of the drug is to sedate the person for convenience or for disciplinary purposes;”.
I welcome the Minister of State to the House. This is very important and complex legislation so she has my support for the thrust of the Bill. I am glad that only two amendments - Nos. 5 and 245 - deal with chemical restraint. Accepting amendment No. 5 would really enhance the Bill. It states that, "chemical restraint is the intentional use of medication to control or modify a person’s behaviour or to ensure a patient is compliant or not capable of resistance, when no medically identified condition is being treated, where the treatment is not necessary for the condition, or the intended effect of the drug is to sedate the person for convenience or for disciplinary purposes;".
In a nutshell, by accepting this amendment, we will improve the human rights and quality of treatment for a person. Before any drug is given to restrain a patient, a clinical assessment should be carried out which means staff would have time for the patient. For example, giving a patient with dementia and who is agitated a drug will quieten him or her but it does get to the root of the problem. Staff need time, skills and resources. This is humane and it is what I am asking of the Minister of State by accepting this amendment.
I have heard of cases where patients with dementia who have been agitated have been given drugs instead of receiving talk therapy to take them through the condition. I have heard of a stroke patient being drugged instead of being taken to the toilet. All she needed was to be physically brought to the toilet. It is undignified to use drugs in this way. I am not saying there is no need for drugs; there is a place for drugs but only after a clinical assessment has been carried out which deems use of them as being the best and last resort.
Same applies to children with autism. Instead of staff being trained to talk to children in a meltdown situation, Ritalin is often administered. I know that because there have been children in that state in my classroom. One is not dealing with the real person but a person in a zombie-like state who has been incapacitated. One is not dealing with the person with whom one could be dealing in order to get the best out of him or her. I strongly encourage the Minister of State to accept my amendment. SAGE is very appreciative and supportive of the amendment.
Amendment No. 245 reiterates what is in amendment No. 5 and states: "Nothing in this Act shall be construed as authorising any person to administer to a relevant person any medication for the purpose of controlling or modifying the relevant person’s behaviour or to ensure that a relevant person is compliant and not capable of resistance when no medically identified condition is being treated, where the treatment is not necessary for the condition, or the intended effect of the medication is to sedate the relevant person for convenience or for disciplinary purposes." This reminds me of what went on in that horrific case in Áras Attracta.
In some cases, I understand there is. Amendment No. 245 further states: "Notwithstanding the provisions of subsection (1), the appropriate use of drugs to reduce symptoms in the treatment of a medical condition does not constitute chemical restraint but the administration of such medication should be clearly documented on the relevant person's file and the reasons for the administration of such medication specified." In other words, there is a time and a place for medication but only after all of the appropriate human interventions, the face-to-face therapies and talking patients down and through the situation have been used.
The two amendments hang together very clearly. The first one is a definition and I cannot see why it should be rejected. It states that "chemical restraint" is the intentional use of medication to control or modify a person’s behaviour or to ensure a patient is compliant" - in other words, to dose them down. It is an emergency fire department response to the situation.
Importantly, the amendment also indicates that this is in a situation where the administration of these kinds of drugs is not to treat any condition - in other words, the drugs are not medically necessary and their usage is simply a form of restraint. We have to be very careful, in terms of people's human rights, when administering restraint.
The amendment also states that "the intended effect of the drug is to sedate the person for convenience or for disciplinary purposes." It is pretty shocking to think that when somebody behaves badly because he or she suffers a bit of dementia that, as punishment, drugs are administered to shut him or her up, keep him or her quiet and keep him or her down.
This would be pretty dreadful.I have experience from 30 or 40 years ago of visiting the then Central Mental Hospital in Dundrum, where I witnessed staff going around with trays of drugs and allowing people pick up handfuls of them. Those patients were zombies: they were out of their skulls. I do not think this practice continues and would be very surprised if it did. These amendments deal with the last vestiges of that and will ensure that drugs are not inappropriately used. Drugs are for a specific purpose and should not be used to punish people. The idea of using medication to punish a mentally-ill person is absolutely repugnant.
Amendment No. 245 makes it perfectly clear, following the definition in amendment No. 5, that the Act shall not be interpreted in such a manner as to allow the administration of drugs or medicines in such a way - either to restrain or punish. However, it makes provision in subsection (2) for the medical administration of drugs. In other words, in cases where they are being administered to treat a particular medical condition, that is not to be considered as chemical restraint.
I support this amendment. I too was contacted by Mervyn Taylor of SAGE, the support and advocacy service for older people, in regard to this issue. SAGE has noted the clear statement in the Department of Health policy document towards a restraint-free environment in nursing homes, which unequivocally states, "Chemical restraint is always unacceptable." Chemical restraint is a violation of personal and bodily integrity. It constitutes inhumane and degrading treatment and in the experience of SAGE, it is being used in certain circumstances to deprive people of their liberty rather than to address underlying clinical issues. As such, it is in breach of Article 3 of the European Convention on Human Rights and, therefore, should be prohibited.
It is health care professionals who are responsible for the administration of medicine to control behaviour, but rather than undertaking detailed clinical assessments to address the underlying reasons for agitation in some patients, for example patients with dementia, they use chemical restraint as a first rather than a last resort. That is why I support this amendment and why I have put my name to it. We need to legislate and make it very clear that we should not normalise the issue of chemical restraint. It is a last resort and there should be an appropriate clinical assessment done if it is to be used.
The fact amendment No. 245 uses the words "chemical restraint" means it is not unreasonable to ask for "chemical restraint" to be defined. We spoke about interpretation earlier and about how one interpretation can differ from another. Obviously drugs must be prescribed by a medical practitioner, but there could be different interpretations regarding how they are used. Nursing homes have guidelines on how to deal with this matter, but would it be possible to address the problem raised here through the use of guidelines? I understand the concerns of other Senators regarding the widespread use or any use of chemical restraint in nursing homes without a requirement for medical intervention.
I understand perfectly the concerns of Senators. We are always under the impression that restraint is physical, but chemical restraint is much more subtle and, probably, far more effective. Apart from in this Bill, there are other areas that are protected in terms of chemical restraint. For example, HIQA always insists on reading patients' records to ensure that medication is appropriate for people and that the amount and frequency of medication administered is registered. This provision is always part of HIQA's reporting process. This is one of the mechanisms we have as a safeguard. Mention was made of Áras Attracta and that example shows we are human and things do go wrong. However, we must accept that the majority of people working in the care industry and medical professionals take this issue seriously and do not administer drugs that are of no benefit to the health of patients.
Amendments Nos. 5 and 245 would introduce a definition of chemical restraint into the Bill and would insert a new section stipulating that persons would not be authorised by this Bill to use chemical restraint. We are all in agreement that chemical restraint should be used as little as possible. I have already responded to this concern and this is not the first time it has been raised. I am sure the Senators proposing the amendment have been lobbied on this area. I have already responded to this concern through the amendments I introduced in the Dáil on Report Stage. I introduced an amendment which stipulates that chemical restraint can be used or authorised only by decision-making representatives or by attorneys. This is a significant safeguard. They can use chemical restraint only in very limited circumstances, where there is an exceptional emergency situation which involves an imminent risk of serious harm to the relevant person or to another person. The use of such restraint must be proportionate to the likelihood of harm. Where chemical restraint is used or authorised, decision-making representatives and attorneys must include details of the use of restraint in their reports to the director of the decision support service.
My amendments give the strong message that chemical restraint should be used only as an exceptional measure. They are focused on instances in which individuals take decisions on behalf of a person with capacity difficulties as that is the focus of this Bill. The Bill is not intended to address all issues that may affect vulnerable people. Both HIQA and the medical profession have a role to play also.
On the issue of chemical restraint more broadly, the position is that chemical restraint is not currently defined in health legislation although, as previously stated, a definition is given in the national policy on the use of restraint in designated centres for older people - nursing homes. Regulations on designated centres for older people require that restraint only be used in accordance with that policy.
The Mental Health Act requires rules for the use of restraint to be drawn up by the Mental Health Commission. Rules have been in place since 2009. The recent review of the Mental Health Act has recommended that revised mental health legislation should be broadened to include all forms of seclusion and restraint, similar to in the capacity legislation. The group was satisfied that the details of how such policy should operate is best left to be provided for in rules and guidelines, which are to be revised by the Mental Health Commission when primary legislation is revised. At this point, it is intended that secondary legislation should include a provision ensuring that approved centres are obliged by law to follow national policy where seclusion and restraint are concerned.
Detailed provisions regarding the use of chemical restraint and other types of restraint are best set down in national policies and underpinned by secondary legislation. This has the advantage of allowing for changes to be made, such as to improve safeguards, without the necessity of having to amend primary legislation. For this reason, while I sympathise with what the Senators are seeking to achieve and have considered the issues, I cannot accept the amendments. Again, we have included safeguards in this Bill in the context of who can authorise the administration of drugs and a reporting mechanism that should provide greater protection. There are times when that protection is needed.
The Mental Health Commission is also very active in this area. It is the HIQA of mental health services. In the context of older people and disability, HIQA is equally active in this area. I believe we have sufficient safeguards in the Bill and further agreed definitions will be introduced in the revised Mental Health Act.
That is what I thought but it seems extraordinary that there is no definition for same. Whatever about amendments Nos. 2, 4 or 5, surely to goodness there should be the acceptance of a definition? If the Minister of State does not like our definition, she should present one of her own. It is astonishing that a major term employed in the Bill should not be defined. Everything else is defined. Decision includes "classes of decisions", for example. The Bill defines decision although many people would believe they know what that means. Under the legislation, Act of 1995 means the Civil Legal Act of 1995 and so on. There are so many definitions included. Why is there an absence of a definition here? I would have thought that because chemical restraint is such a clear term, it would need a definition. The definition offered here is: "the intentional use of medication to control, modify or a person’s behaviour or to ensure a patient is compliant or not capable of resistance when no medically identified condition is being treated, where the treatment is not necessary for the condition".
I do not mind at all. I have no problem with the Minister of State turning away and taking advice, although I know that other Senators do not like it.
I firmly believe that there must be a definition in the Bill. A definition is needed and I cannot emphasise that enough.
I also believe a definition is vital because we must have agreement on what we are talking about. When SAGE put its case to me, I had to ask what was meant by the term "chemical restraint" because I wanted to make sure we were talking about the same thing. This Bill, without a definition of chemical restraint, will not be strong enough to prevent the use of drugs to control behaviour for disciplinary or other purposes. The term must be defined and clearly understood throughout the text of the Bill. My thoughts go out to the poor, weak, vulnerable people who are being managed by drugs when talk therapy or other approaches would be more satisfactory.
I also ask the Minister of State to clarify what she means when she says that chemical restraint should only be used in exceptional circumstances. I agree with that but ask where that assurance is laid out in the Bill.
That is what I was consulting the departmental official about because I knew I had read it somewhere. It is defined in the Bill and the definition is very similar to what is proposed in the amendment. It is covered in the section dealing with restrictions on decision-making representatives, namely section 38. I will now read the relevant-----
If the Senators turn to page 53, section 38(9)(c) they will see the definition, which is very close to that proposed in the amendment. It reads as follows: "administers a medication, which is not necessary for a medically identified condition, with the intention of controlling or modifying the relevant person’s behaviour or ensuring that he or she is compliant or not capable of resistance".
It should be in the definitions and the definition provided for in the amendment is better. First, it is a definition. Second, it is very clear and third, it introduces the fact that the drugs being administered are not necessary for a medical condition. That is absent from the subsection to which the Minister of State referred, which is not a definition. I know that sometimes in Bills there are sections which contain definitions within them, in addition to the definitions in the first part of the Bill. However, this ---
Perhaps we should take a little more time to read through this because the definition is actually there. The paragraph reads,"administers a medication, which is not necessary for a medically identified condition".
Let us examine what we are saying here. For the purposes of this section, "a decision-making representative for a relevant person restrains the relevant person if he or she" and then there are a number of points, including the one read by the Minister of State. Let us say, for the sake of argument, we are talking here about a nurse or a care giver. Is he or she actually called a "decision-making representative"? A nurse or care giver may just be following someone's orders. I would not be convinced at all about this, given the potential impact on the patient, sufferer or vulnerable person. I would not be at all convinced that a person who is following instructions from a third party is a decision-making representative.
No, I am not because subsection (c) of section 38(9), which the Minister of State read out to reassure us, is covered by the overarching opening sentence of the subsection, which reads, "For the purpose of this section, a decision-making representative for a relevant person restrains the relevant person if he or she...". What I am trying determine is whether a care assistant, for example, is classed as a decision-making representative.
Yes, but that is not the point of the amendment. The point of the amendment is to define chemical restraint but chemical restraint is covered in the Bill. If the Senator wants to propose an amendment relating to-----
It is only covered subject to the opening sentence which I have just read out. A decision-making representative is not allowed to administer a medication but I am asking if a care giver is a decision-making representative. Is a nurse, for example, a decision-making representative?
That is the information I was given. This subsection does not refer to chemical restraint or define same. I note that the Minister of State is nodding so I am taking that to mean that the phrase does occur elsewhere in the Bill. Her case is substantially weakened by virtue of the fact that subsection (9) of section 38 begins thus: "For the purposes of this section". That limits it to this section, which means it is not an adequate definition. It does not refer to chemical restraint as such. It gives a definition that approximates to chemical restraint but it limits and confines it to this section. Therefore, where chemical restraint occurs elsewhere in the Bill, there is no definition.
I believe the point made by Senator Healy Eames concerns the chain of authority. Nowhere does the Bill authorise anyone else to medicate people for an identified medical problem. This Bill has taken a considerable time to draft. Do the Senators want to go into that level of detail to see what more we can add?
I am very specific because I am talking about a definition. I could not be more specific. I am talking about the language.
I have established that "chemical restraint" occurs in other sections of the Bill. It would be very helpful if the Minister of State or her advisers could indicate where "chemical restraint" occurs in the Bill. I know that is a bit of an “ask”, as they say, but I would be very grateful if she could. That might help us to tease out whether a definition is required.
I do understand that the Minister of State is getting my point about the chain of authority. This is limited in two ways: first, the Government should amend the words "this section" because one could argue that it applies only in this section; second, a definition is vital and if the phrase “chemical restraint” appears elsewhere the Minister of State should give us the precise page references. Given that the Minister of State said that a caregiver or a nurse would not be the decision-making representative prevented from administering a medication, which is not necessary for a medically identified condition, who are these decision-making representatives? We need to know. Is it an attorney? Who are we talking about?
Yes. My point was that if the phrase “chemical restraint” occurred in the legislation, as I was initially told, it would have needed a definition. It does not occur except in a section where it more or less defines itself.
I do not agree with all this. In this kind of circumstance where there are 21 or 22 pages of amendments and they are all grouped together as a big group and we can discuss them only as this kind of huge, amorphous bulk, we do not have the opportunity to consider them when we come to them in the actual Bill, where they are relevant. We are told they were already discussed with the other amendments. It should be possible to come in again at that point.
Amendments Nos. 8, 48 to 50, inclusive, 56, 73, 76, 82, 95, 106, 107, 116, 131 and 232 are technical amendments to correct cross-references or typographical errors. That will drive the Senator mad but there it is. It has to be done. Amendment No. 8 is a technical amendment to correct an incorrect cross-reference. Amendments Nos. 48 to 50 are technical amendments to specify the cross-reference more precisely. Amendment No. 56 is a technical amendment to include the necessary cross-references to all provisions relating to offences in the Bill. Amendment No. 73 is a technical amendment to provide for the correct reference to specific provisions in the Companies Act. Amendment No. 76 is similar to amendment No. 56 and is a technical amendment to include the necessary cross-references to all provisions relating to offences in the Bill. Amendment No. 82 is a technical amendment to introduce the necessary cross-reference to the functions of a co-decision-maker as set out in section 16. Amendment No. 95 is a technical amendment that provides for the director, in reviewing a co-decision-making agreement, to check that the agreement is not null and void. Amendment No. 106 is a technical amendment to specify the correct cross-reference more precisely.It proposes that the court would make a determination pursuant to an application under subsection 4(b) which provides that the director can apply to the court to determine whether or not a person should continue to be a co-decision maker.
Amendment No. 106 is a technical amendment to specify that the application to register a co-decision-making agreement is subject to the requirement of subsection 14(6). This specifies that a co-decision-making agreement may be signed on behalf of an appointer by a third party. This is permitted where the appointer is unable to sign the agreement. However, the appointer must specify the third party who will sign on his or her behalf.
Amendment No. 107 is a technical amendment to describe more clearly the first grounds on which a complaint can be made against a co-decision maker. This is when the co-decision maker has acted or is proposing to act outside of the scope of the functions of the co-decision-making agreement and no change of policy is proposed.
Amendment No. 116 is a technical amendment to specify the cross-reference more precisely. The court will make a determination on an application by the director under subsection 2(a) where the latter believes a complaint to be well founded.
Amendment No. 131 is a technical amendment to make clear the court's determination on applications on co-decision making is limited to matters arising from this part and to co-decision making.
Amendment No. 232 clarifies that in any application to the court on an advanced healthcare directive, the applicant should inform the court of any enduring power of attorney regardless of whether it was registered under the Bill or the 1996 Act.
Amendments Nos. 9, 15, 18, 22, 24, 28, 46, 53, 54, 57, 59, 60, 66 to 68, inclusive, 70, 72, 74, 78 to 80, inclusive, 83 to 91, inclusive, 94, 96 to 104, inclusive, 109 to 115, inclusive, 119 to 130, inclusive, 133 and 147 are drafting amendments and may be discussed together by agreement.
I will take this as slowly as possible because it is a huge group of amendments. I understand the Senator's frustration. We will do this as painlessly as possible. Amendment No. 9 is intended to define intervention more accurately as the actions which directly have an impact on a relevant person. These can include an action by an intervener, a court order or a direction made by a court. It is not appropriate to include rules of court or ministerial regulations within the definition as their impact would be indirect in nature and would not be focused on an individual case. Accordingly, it is proposed to delete the references to rules of court or ministerial regulations from the definition of intervention.
Amendment No. 15 proposes to delete the words "in accordance with the provisions of this Act" from the definition of relevant person as the phrase is unnecessary to the meaning of the definition. Amendment No. 18 proposes the deletion of a phrase which is unnecessary to the meaning of the provision. It is intended that the provisions of section 3 will apply for all of purposes of this Bill. Amendments Nos. 22 and 24 propose to delete the word "relevant" from the provisions relating to the donation of an organ or the withdrawal of life-sustaining treatment. Amendment No. 28 proposes to delete the word "relevant" from subsection (9) of section 8. This is because the phrase "relevant person" means someone who lacks capacity. As these provisions explicitly state that they relate to a person who lacks capacity, the reference to "relevant" is unnecessary.
Amendment No. 46 is a technical amendment to introduce the necessary cross-reference to the criteria as set out in section 15 that make a person ineligible to be appointed as a co-decision maker. Amendment No. 53 ensures that the definition of immediate family relates to both the appointer and the co-decision maker and not just the appointer who is a relevant person. The purpose of amendment No. 54 is to correct a grammatical error. Amendment No. 57 is a technical amendment to make the provision more precise. Amendment No. 59 is a technical amendment that clarifies the intent of the provision that the functions of a co-decision maker shall be specified by the appointer in the co-decision-making agreement. Amendment No. 60 is a technical amendment that clarifies the intent of the provision that the co-decision-maker shall assist the appointer with communicating his or her will and preferences. Amendments Nos. 67 and 70 are technical amendments to specify that a co-decision-making agreement will be null and void if any of the circumstances specified in subsections (1) or (2) occur, that is, that a marriage or civil partnership is dissolved or the couple separate. Amendment No. 68 is a technical amendment to clarify that the reference is to the co-decision-making agreement.
Amendment No. 72 is a technical amendment to specify that subsection (6) relates to a co-decision-making agreement which becomes null and void post-registration of the agreement. Amendment No. 74 is a technical amendment to specify that the cross-reference should be to Chapter 5 of Part 14 of the Companies Act 2014. Amendment No. 78 is a technical amendment to specify that the disqualification of a potential co-decision maker occurs when the court makes a declaration under section 34(1), that is, a declaration which declares the co-decision maker to lack capacity, unless assisted by a co-decision maker or even with the assistance of a co-decision maker. Amendments Nos. 79 and 80 are drafting amendments to make the intent of the provisions clearer. Amendment No. 83 corrects a grammatical error.
Amendment No. 84 clarifies that the application for registration of a co-decision-making agreement must include a copy of any notice given to specified parties. Amendment No. 85 is a technical amendment to specify that the director’s review of an application for a co-decision-making agreement will relate to establishing if the criteria set out in paragraphs (a) to (f) have been met. Amendment No. 86 is a technical amendment to specify that one of the criteria that needs to be fulfilled is that the co-decision-maker is eligible for appointment according to the eligibility grounds set out in section 15. Amendments Nos. 87 and 88 are technical amendments in the interests of consistency. They propose that specified actions will be taken where the director is of the view that criteria have been satisfied.
Amendments No. 89 and 90 are technical amendments to clarify that the capacity to make a decision is at issue rather than the decision in general. Amendment No. 91 is a technical amendment to specify more clearly that an objection can be made to registration of a co-decision-making agreement if the potential co-decision maker is not eligible on the grounds set out in section 15(1). Amendment No. 94 is a technical amendment to specify more precisely that the director’s review of a co-decision-making agreement should be against the criteria set out in paragraphs (a) to (e). Amendments Nos. 100, 102 and 103 are related amendments which propose that the director’s view on the outcome of the review will be based on whether or not the criteria have been fulfilled.
The purpose of amendment No. 95 is to correct a typographical error. Amendments Nos. 96 and 97 propose to delete the word "effectively" as it is a subjective term and difficult for a director to assess. Amendment No. 98 is a technical amendment. Amendments Nos. 99 and 101 are related amendments which clarify that the director is forming a view that the necessary criteria do not apply at the time of his or her review of the co-decision-making agreement.The director is not making an assessment as to whether the criteria applied in the past.
Amendments Nos. 100, 102 and 103 are technical amendments that clarify the intent of the provision. Amendment No. 104 is a technical amendment to replace the term "notice" with "notification". The term "notification" is a more correct term in the provision that sets out the director's right to apply to the court for a determination, having notified the co-decision maker that he or she has failed to submit a report or has submitted an incomplete report. The term "notice" relates more to the serving of notice to specified parties of the creation of an enduring power of attorney, for example.
Amendment No. 98 follows on from the change to the heading in the subsection. Amendments Nos. 109 to 112, inclusive, are technical amendments changing "the" to "and". The amendment is needed because a relevant person does not have the status of "the" appointer if a co-decision-making agreement is potentially null and void. Amendment No. 113 is a technical amendment to make clear that the director's investigation will be on the matters that are the subject of the complaint. Amendment No. 114 proposes a time limit of 21 days for a person to appeal a decision of the director that a complaint is not well founded.
Amendment No. 115 is to correct a typographical error. Amendments Nos. 119 to 130, inclusive, are a series of technical amendments intended to make clearer the provisions of section 28. Amendment No. 133 is a technical amendment to specify that the person commits an offence when he or she uses fraud, coercion or undue influence to force another person to make, vary or revoke a co-decision-making agreement. Amendment No. 147 is a technical amendment to make clear that the decisions for which the person needs a co-decision-maker will be those set out in the court's declaration rather than in an application, potentially by a third party, to the court.
Quite a number of these amendments should have been picked up over the past two years and there is no excuse for that. Will the Minister of State elucidate on amendment No. 63, which deletes:
A co-decision-maker shall not—(a) attempt to obtain information that is not reasonably required for making a relevant decision, or
(b) use relevant information for a purpose other than in relation to making a relevant decision.?
Sorry, I will speak up. Amendment No. 63 purports to delete on page 26 lines 19 to 26. These state:
(3) A co-decision-maker shall not—(a) attempt to obtain information that is not reasonably required for making a relevant decision, or
(b) use relevant information for a purpose other than in relation to making a relevant decision.(4) A co-decision-maker shall take reasonable steps to ensure that relevant information—(a) is kept secure from unauthorised access, use or disclosure, and
It is page 26 of the Bill. I am curious as to why the Minister of State wants to delete a provision indicating that people should not attempt to obtain information that is not required. It would be utterly wrong to use information for a purpose that is not appropriate. The other provision is that a co-decision-maker should take reasonable steps to ensure the information is kept secure. I am sure that is appropriate so I wonder why it is to be deleted.
We are trying to tidy up the Bill and as the Senator has stated, it is difficult enough to get our heads around it. All the information relating to the obligations by co-decision-makers and others will be in section 8. We are trying to tidy it up.
I do not see anything in section 8 indicating that these people "shall not obtain information" inappropriately or use it inappropriately, keeping it from unauthorised access. Is it in section 8? I am sorry but maybe I am just being obtuse.
This is why there is a difference. My reference is for page 4. I want to be careful about the information I am giving. The amendment states:
In page 18, between lines 31 and 32, to insert the following:“(10) The intervener, in making an intervention in respect of a relevant person—(a) shall not attempt to obtain relevant information that is not reasonably required-----
Amendments Nos. 14, 43, 63 and 240 to 243, inclusive, are intended to insert provisions to ensure that information is sourced, used and stored correctly and in compliance with data protection obligations. The proposed amendment No. 14 is intended to bring the Bill into compliance with the Data Protection Act by including a definition of "relevant information". This definition will enable interveners, such as decision-making assistants, for instance, to know the categories of information that they can and cannot access. Including the definition should also make clearer to an institution which categories of information can and cannot be given to an intervener.
Amendment No. 43 proposes to delete subsections (3) and (4) of section 16 as the obligations arising for co-decision-makers are now set out in section 8. The obligations now relate to all interveners rather than specifically to decision-making assistants. Similarly, amendment No. 63 proposes to delete subsections (2) and (3) of section 11 as the obligations arising for decision-making assistants are now set out in section 8.
Amendments Nos. 240 and 241 propose to introduce additional provisions into section 82 concerning the obligations that will apply to general visitors and special visitors if they seek records relating to a person with capacity difficulties as part of their role to support the director. They will need to have access to such records mainly when they are examining a complaint received by the director relating to a person with capacity difficulties. The proposed amendments retain the provision allowing them to examine and take copies of records.It specifies that these can be health, personal welfare and financial records pertaining to the person with capacity difficulties. It also retains the provision for the general visitor or special visitor to interview the person.
The amendments propose a series of additional obligations to bring the provision into line with data protection obligations. It requires the general visitor or special visitor to seek the consent of the person with capacity difficulties prior to seeking the records in question. It proposes that the consent requirement can be dispensed with where the person has a decision-making representative or an attorney under an enduring power of attorney. This is for the reason that if the special visitor or general visitor is examining a complaint, it may often be against a decision-making representative or an attorney. It would not be appropriate, therefore, for the person against whom a complaint is potentially being made to have the possibility to refuse access by the special visitor or general visitor to the records in question.
The amendments would impose the following restrictions in terms of the records that can be sought. These are limited to the records needed for the purposes of carrying out the task required by the director. They would also require the special visitor or general visitor to keep the records secure from unauthorised access, use and disclosure. They would require the special visitor or general visitor to dispose of the records when no longer needed. To ensure these restrictions are complied with, they would require the director to carry out an annual check to ensure special visitors and general visitors are complying with these obligations.
Amendments Nos. 242 and 243 propose the same provisions and obligations on court friends as are specified in respect of general visitors or special visitors. They require the court friend to seek the consent of the person with capacity difficulties prior to seeking the records in question. They also propose that the consent requirement can be dispensed with where the person has a decision-making representative or an attorney under an enduring power of attorney. This is for the reason that if the court friend is supporting a person with capacity difficulties in a court hearing, the interests of the incapacitated person may be at odds with those of a decision-making representative or an attorney. It would not be appropriate to give them the power to refuse access to such records.
This is a technical amendment. It is considered good drafting practice for the legislation which is to be repealed to be included in the same section. No change of substance is involved. The Bill proposes to repeal, as previously agreed, the Marriage of Lunatics Act 1811, which seems so ridiculous now. The Lunacy Regulation (Ireland) Act 1871 will be repealed with the exception of the transitional arrangements of Part 6 to allow all adult wards to be discharged from wardship and-or migrated to the new options. That should get a round of applause.
I move amendment No. 26:
In page 17, to delete line 30 and substitute the following:"and to reside in the place of his or her choice in so far as that is practicable,".
Section 8 sets out the guiding principles, inherent in which is the minimisation of the restrictions on relevant persons. The principles include respect for the right to dignity, bodily integrity, privacy, autonomy and control of financial affairs. These are important rights but a fundamental right that should be included as a guiding principle is the right to reside in a place of one's own choice where that is practicable. This right for older persons is included in section 2 of the Council of Europe recommendations 2014 on the promotion of the human rights of older people and provides that older persons are entitled to lead their lives independently in a self-determined and autonomous manner. This encompasses,inter alia, the taking of independent decisions with regard to all issues which concern them, including those regarding their property, income, finances, place of residence, health, medical treatment or care. Older persons, in principle, should only be placed in a residential institution or psychiatric care with their free and informed consent and any exception to this principle must fulfil the requirements of Article 5.43 of the European Convention on Human Rights, in particular the right to liberty and security.
With regard to people with disabilities, the right to choose a place of residence is set out in Article 19(a) of the UN Convention on the Rights of People with Disabilities 2007, which provides, "Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement". Too often, current practice is not to afford the opportunity to a person to exercise his or her right to make a choice as to whether he or she would like to reside and not to consider what options and support are available and could be put in place in respect of the choice being made. The spirit of the legislation requires us to do this and I would like the Minister of State to accept the amendment. The inclusion of this right in the guiding principles will at least prompt the interventor to consider this right before making arrangements that are contrary to the wishes and preferences of the relevant person. Each person's well-being and happiness, which we continually forget, should be the standard that society aspires to.
I know the Minister of State understands this better than anybody but we seem to think that as one gets older, one becomes a bigger economy. Although they are necessary and do good work, too many care and residential homes are being built and not enough is being done to keep people in their own homes if that is what they wish and if that is practicable. There is such a concept as the appropriateness of a home. More residential settings or residential beds for the elderly are not needed because we have enough. The Minister of State will be aware of residential institutions that are a home within a home all over Ireland. Older people have to be free and they should never be incubated.
I mentioned the last time we discussed this topic in the House that if one left a dog on its own for three days, the ISPCA would be rapping on the door to find out why one did that. Older people do not bark enough for attention but we accept that they are deserving of more than one hour's human contact per day.We accept that older people are deserving of more than one hour of human contact per day. We should stop segregating them. There is a kind of an apartheid in how we treat older people. That is why I tabled this amendment which I hope the Minister of State will accept. It proposes the inclusion of the words "to reside in the place of his or her choice in so far as that is practicable". It is not always medically practical or possible but it should be a choice. We have the money to keep people in homes that cost a €1,000 a week for their care but we do not have the same amount of money to keep them within the community. I do not understand that and that is reason I tabled this amendment.
I know the Minister of State understands this point but the fair deal scheme should start in the home. People should be able to stay in their homes to which the fair deal scheme should apply. It should not only apply if people go into a care or an institutionalised setting. The Minister of State is very aware of my views on this. This issue has become very apparent to me. Sometimes things do not become apparent until they hit one right between the eyes with ageing parents. One of the findings from a small study I did recently of the Civil Service is that the mean age of the staff is 46 and many of them spend a great deal of their lives caring for elderly parents. We will all do it and we will all face our own mortality and growing old.
I would like the Minister of State to consider including this amendment. Inherent in that guiding principle section is the bodily integrity of the human being and the protection of finance but we must protect people in their homes and we must protect their decision-making in regard to the place they want to reside. This brings up the point other Senators made about ensuring people are not being cared for by strangers who make decisions on the hoof. I would like the Minister of State to consider this genuine amendment.
I will speak only to amendment No. 26 which is a reasonable one and states "in so far as that is practicable". What it proposes is the direction in which the health service should be moving and what it should be aiming to do. Increasingly, more rather than less care should be given in the home. I will speak on amendment No. 27 after Senator Norris has spoken, as it is his amendment.
That is no problem. I was called out of the Chamber to say hello to a group I had missed and which I was supposed to meet at 6.30 p.m., so I apologise to the House. Amendment No. 27 should not to be taken with amendments Nos. 26 and 29, as it has not the remotest connection to either of them.
There is no connection whatever. There is a reference in amendment No. 27 to section 121 but that section does not exist in the Bill, as it stands, but it is amendment No. 244. Therefore, they could not have a clearer connection. One amendment refers to the hypothetical new amendment, so they should be grouped together but amendment No. 27 should not be grouped with two amendments with which it is not related. The groupings here are completely daft. I ask that we deal with amendments Nos. 26 and 29 now and that amendments Nos. 27, 239 and 244 be taken together. That is the logical thing to do when those three amendments refer to each other.
I apologise for not being here for the taking of amendment No. 17, which I will resubmit on Report Stage. I am fully supportive of amendment No. 26 tabled by Senator O'Donnell. The Minister of State is very aware that Senator O'Donnell tabled a motion in recent months on this very issue. We had an excellent debate on it in this House. What the Senator is trying to achieve is to ensure the principle and the right of people to have such a choice. She has appropriately added the words "in so far as that is practicable". She has included a safeguard appropriately and I support her proposal.
While I am very sympathetic to Senator O'Donnell's amendment, I have one concern, which the Senator might address. Her amendment includes the words "in so far as that is practicable". I recall the turmoil of my elderly mother who wanted to live independently long after she was able to so do. At one stage, we had a nurse caring for her and over a period of six months, €54,000 was consumed. What caused us to make the final decision was finding her lying on the floor of her apartment, where she had been lying for several hours. We were confronted with the moral question as to whether we should make a decision for her. My mother was very lucid and was with it most of the time. It is that practical issue that I am trying to address. While I would like to support what the Senator said, I need that teased out a little more.
I take Senator Craughwell's point. I am making a more general argument about the way we are "processing" older people and that is the word for it in the sense that we will not consider having the fair deal scheme applying to the home in the same way that it operates in care settings but it would be helpful if could start there. In the Senator's case, it was not a practical option for his mother. Sometimes the decision is made. I have aged parents and there is nothing that teaches one as quickly and as well as the human being in front of one as to how one should proceed. It is a more general look at how we should treat older people. We all talk about the dignity of protecting finances, bodily dignity and the dignity of the self but people want to reside in their homes. This is not the only legislation in which it sought to bring this about, we are trying to do it from a community, social and health point of view. If I was standing in the next election for the Government, it would be an issue on which I would be standing, that people would have the right to stay in their home where it is practical and where it is medically and psychologically feasible. I understand the Senator's point but I was talking about it as a generality and I believe that is the way we should be going. We should be looking at the home as the best place. I understand also that if the fair deal scheme applied in the home, the Senator might not have had to make the financial gift he had to make every week for care.
Amendment No. 29 seeks to ensure that the Bill complies with the Data Protection Acts - it is a technical amendment - by prescribing the data protection obligations that will arise for all interveners under section 8. All interveners will be obliged not to attempt to obtain or to use information acquired in relation to a relevant person other than for the purposes of the decision. Interveners will also be required to ensure that the relevant information is safely stored to prevent unauthorised access, use and disclosure. Furthermore, a requirement is proposed which would require an intervener to dispose of the information when that information is no longer required. I think that covers Senator Norris's point regarding the deletion of text from another section; it is simply transposed and made stronger.
On amendment No. 26, tabled by Senator Marie-Louise O'Donnell, we have had this discussion over and over again and we are at one about what should happen, but the difficulty is that this is the wrong piece of legislation. As the Senator rightly pointed out, there are many pieces of legislation into which these types of safeguards on will and preference should be inserted. Unfortunately, this Bill is not the appropriate place because none of us has a right to decide where we are going to live or how we are going to live in many ways. Of course we can decide if we have loads of money and that is possible, but the Senator's general point is that in the event that someone is already in situ in a home situation and they do not want to move from there, they should be afforded the opportunity to address that.
It is nothing to do with this Bill, it is to do with the fair deal scheme. We did look in the review at whether it was possible to offer the fair deal scheme in the home. What we discovered is that if one were to apply it to a home situation, while it would be beneficial in certain circumstances it would not suit other people who do not have family to contribute because the fair deal scheme is very much based on a contribution from the person. Despite the fact that one would be quite willing to make such a contribution for care, one would still have to heat one's home, eat and provide for all of the other needs. There must be a different mechanism for doing that. What we must do is build up community services. Most of the factors that keep us well in our own community are issues outside of the remit of the Department of Health and the Minister of State with responsibility for older people.
The next Government should create a new Department of social care, which would bring all of those related issues together to ensure that people at a later stage in their life who might need to dip in and out of services and require additional health care or support would be allowed to stay in their own homes. Equally, we need additional nursing home beds because there are people, such as Senator Craughwell's mother, who are at a particular stage in life and no matter what one would put in place they cannot safely stay in their own homes.
I accept Senator O'Donnell's point but, unfortunately, I cannot accept the amendment. I hope that in another piece of legislation we might be able to make a more reassuring and secure commitment to ensuring people can make choices about what they want. This Bill will allow people to make choices but, first, there is a big learning curve to address in terms of telling people who need to make decisions now and for them to get those who agree with their point of view, which is important, to make decisions with them.
If families had that €1,000, under governance, would they not be prepared to provide care? Perhaps that is too creative. One could ask if there is a right place for legislative measures. I accept the point that the Bill concerns decision making and that if older people want to stay in their homes they cannot be forced out, if they have the capacity and wherewithal. However, where does one start with legislation? A measure such as the one I proposed should be enshrined in social, community, health and education legislation. I am in two minds as to whether to press the amendment. I appreciate the work that has been done on the Bill and that one cannot always have everything one wants.
I seek to reassure the Senator again. What we seriously need to do is start to create different types of communities in order that one would not have circumstances whereby a person is in a home that is way too big for him or her, as a big house is difficult to heat and stairs are difficult to negotiate among other matters. Perhaps we need to start from the perspective of the Department of the Environment, Community and Local Government in terms of creating different types of housing. I do not mean different types of communities because I do not want people to be segregated. Members know my views in that regard. We must ensure that we start to build more appropriate settings within communities for us as we age.
We continue all the time to create fragile environments and we put older people into them which makes them even more fragile. It is done in the name of health and safety but in fact it is the closing down of their freedom. Some of them are so healthy and safe they are treated like babies and they are not allowed to think for themselves. In effect, their liberty is taken away from them, for example, because they broke their arm and there is nobody to make their dinner on a Saturday. I know the Minister has read the book by Atul Gawande, Being Mortal, and knows what we do to people when they get older. The model is outrageous. That is where politics should start - at the community level where people, if they want and can, stay in their towns and villages.
I will be very brief. Having listened to Senator O'Donnell, I support her position because I recall seeing one elderly lady in a nursing home who did not want to be there, who was perfectly capable of looking after herself and who cried every day.
I move amendment No. 27:
In page 17, between lines 34 and 35, to insert the following:
“(7) In respect of financial affairs managed by the court, particular consideration of management and oversight in accord with the principles herein are stated in section 121.”.
Amendment No. 27 deals with the question of the special visitor to be appointed to supervise the affairs of a ward of court. One of the items that gives particular difficulty is the question of financial management. This has been a real thorn in the past. I know that it has been said that, taken overall, the results have not been as bad as might have been expected but in some cases they have been spectacularly horrible and we want to ensure that the financial interests of somebody who is not capable of directing those financial interests themselves is properly addressed.
Amendment No. 239 also deals with the qualifications of this particular person. The suggested wording is: "is a person who, although not a registered medical practitioner, is, in the opinion of the Director, a person who has particular knowledge, expertise and experience of financial matters,". In other words, we want somebody who is actually qualified, who has a knowledge of the markets, who will be able to give advice. There is no point in having a medical quack there. They may very well know what to prescribe in terms of medication but they do not know what to prescribe in terms of investments in stocks, shares and bonds. What is required is a person who has financial expertise. The amendment includes a reference to "selected under paragraph (c), will be a representative of the NTMA,". The National Treasury Management Agency has a terrific record, a superb record in safeguarding the interests of this country. It is one group on which we can rely. The amendment also makes reference to the ability to "provide expert guidance on reinvestment of the financial portfolio to sustain costs necessary to the relevant person,". That is the whole point. One invests in order to get the money to provide for the sustenance, well-being and financial security of the person who is a ward of court. In addition, there is a requirement to "provide annual reports to the relevant person".There was a period of many years during which no reports were provided, which meant there was no account whatsoever of stewardship. It is necessary that annual reports be provided in order that trustees or families can urge that a decision be made.
Amendment No. 244 deals with financial powers of oversight and management by the court and provides for what would happen in the absence of a suitable person to act as co-decision maker, or any other condition under which the court retains or assumes responsibility for the relevant person’s funds. In other words, where a question arises about the investment of the funds of a ward of court, the primary purpose of court management of the relevant person’s funds would be the provision of adequate financial support to provide for medical and sundry expenses, which is more or less what I have said. We need to ensure the correct personnel are put in place, which is the purpose of the first two amendments. We then need to set out what they will be required to do, which is the purpose of the third amendment, in ensuring the provision of adequate financial support in the investment of funds.
Subsection (3)(a) of amendment No. 244 is extremely important. It reads, "Assets must be invested in a manner designed to ensure the security, quality, liquidity and profitability of the portfolio as a whole, so far as is appropriate, having regard to the nature and duration of the expected liabilities". In other words, there would be a requirement for prudent investment. In the past this was not done and investment portfolios collapsed. There was an almost arbitrary and care-free approach to investment of the funds of persons who were not in a position to do it themselves.
Subsection (3)(b) provides that assets would have to be invested predominantly in regulated markets and so on. In other words, they would have to invested in safe areas. It would also provide that "investment in assets which are not admitted to trading on a regulated market must in any event be kept to a prudent level". I do not know to what exactly this refers. Perhaps it might relate to property folio investments such as investment in a block of apartments and so on. However, such investments would have to be kept to a prudent level. In other words, all of the eggs should not be put in the one basket.
Subsection (3)(c) reads, "Assets must be properly diversified in such a way as to avoid excessive reliance on any particular asset, issuer or group of undertakings and so as to avoid accumulations of risk in the portfolio as a whole. Investments in assets issued by the same issuer or by issuers belonging to the same group must not expose the scheme to excessive risk concentration". In other words, where possible, risk would have to be avoided. The average person in the street can be as careful as he or she likes and invest on speculative grounds, in which case he or she may make a killing or lose everything. That is his or her decision, but a person who is incapable of making these decisions is reliant on another person to invest prudently and diversify in such a way as to avoid excessive reliance on a particular asset.
Subsection (3)(d) would constrain those making investments, in most circumstances, from investing in derivative instruments. It was derivatives that caused the collapse of western European economies and the collapse started in the United States. The toxic bundles were put together by the clever stockbrokers and financial advisers who are still being consulted by the Government and appointed as advisers. Nobody knew what was in the bundles: they were just derivatives. The amendment would provide for constraint against excessive investment in such instruments which could only be made in so far as they would contribute to a reduction of investment risks or facilitate efficient portfolio management.
Subsection (4) reads, "Annual financial reports on the condition, progress, and management of relevant person’s funds; both liquid funds and investments; will be made available to (a) the court, and (b) relevant persons". Accountability is important.
Subsection (5) reads, "If an endowment as individual principal value falls by 10%, or more, within one financial quarter, the portfolio will be liquidised into cash...". I would like to give an example of where this would come into play, but I will, first, make some general remarks on the question of wardship. Where the High Court approves an award for personal injuries suffered and a plaintiff who is deemed to have a capacity deficit is made a ward of court because he or she does not have the capacity to make appropriate decisions for himself or herself, in respect of which he or she has no choice, funds are not released to meet his or her needs until such time as the process has been completed.
There have been many difficulties with ward of court funds which are held in investments by the Courts Service. Following a Committee of Public Accounts review in 2000, it was determined that no audits had been carried out for two decades. The Bill seeks to address that issue. The amendments to which I am speaking seek to strengthen and reinforce what is provided for in the Bill in that regard. Even after it was discovered that there had been no audits for 20 years, there was no look-back or review carried out. The Courts Service was then established and the accounts of the courts were computerised. The management of funds was put out to tender. The new structure provided for four strands of investment, some of which involved greater exposure to equities and bonds than others. Those that were heavily exposed fared poorly during the financial crisis and some wards' funds suffered serious losses. The Courts Service states the funds have performed well overall compared to similar funds. In this regard, key is the word "overall" because not all funds performed well and there are no similar funds. We are speaking not about regular investors but about vulnerable people under the protection of the State. There were no cash reserves held for wards of court to meet emergencies. It is extraordinary that a person would gamble on the Stock Exchange and not hold back a little to look after people in this position. There is a concern about the management, investment, auditing and accountability of funds. Funds were audited internally, but errors were not always picked up. An audit is instigated by the Courts Service, but as funds are not audited by the Comptroller and Auditor General, there is no accountability. There is a sum of €1.5 billion in the funds.
I would like to outline a specific case which was brought to my attention by parents whose son, as far as I can recollect, had been injured, in respect of which he received compensation. In a two year period between May 2007 and April 2009 the fund diminished from €510,685.02 to €280,145.71; in other words, it was halved, but that is not the end of it. The last statement the parents received showed that the value of the fund at the end of 2014 was €186,490.85. This means that the fund had decreased from almost €511,000 to €186,000, which was an astonishing collapse and worse than the cut in my income as a Member of Seanad Éireann. According to the parents, a further €40,000 can be deducted from this amount for expenses in 2015. With little earnings, the fund will be down to almost €150,000 by the end of the year. The officials say the ward's fund will only last a few years. If it had been managed appropriately. he would not be in this position. In other words, the fund will have reduced from €510,000 to €150,000. In view of what it costs per year to care for this young man, €46,000, the money will be gone in less than four years. What is he to do then?
Quite apart from understanding the complex nature of these investments in unitised funds which have a strong exposure to equities, if one does simple maths, one will see that these funds have not recovered. When one takes the figure of €510,685, the value of the fund in May 2007, and deducts from it €186,490, the amount at the date of the last statement, one is left with a figure of €324,194.17. When this figure is divided by seven, the seven period 2007 to 2004, one gets a figure of €46,313 per annum. The moneys drawn down during these years would not have reached this amount every year, but the point the parents of this young man make is that if they had kept the money in a drawer and drawn down only what was needed, their son would not be any worse off, yet the funds are in the Courts Service for their protection. In other words, had they kept the money under a mattress, they would be in at least as good, if not a better, position than they are having had the money invested. For this reason, the safeguards contained in the three amendments are vitally necessary to protect the welfare and interests of wards of court.Our contention is that the Courts Service has failed in its duty of care to those vulnerable people and has been covering this up by saying that overall funds have performed well. It is no excuse and it is not good enough. We need good governance for these funds. I am sorry if I have taken a while but it is a complex matter and is at the kernel of the welfare of wards of courts because they are financially vulnerable. If we do not ensure that best practice is followed for these people, we are abandoning them to their fate. I urge the Minister of State to take on board the content of these amendments.
I have indicated that I wish to speak on amendment Nos. 27, 239 and 244. I support amendment No. 27 and the rest of the amendments. We have discussed the matter in detail for the past three weeks. I contacted the Minister of State's office about it when I saw this amendment. As Senator Norris noted, the current situation has allowed the funds to dwindle. I have a graph showing how funds dwindled for one ward of court. The people around this individual knew nothing about it. It was all gone. They woke up in the morning and asked where it went. That is not good enough. We must ensure that we do not let that happen. The funds are not nice collections of money. They are needed for the care of vulnerable citizens. As our economy changes, and I grant we must be open, the funds invested will change. The least we are asking is that when they are dwindling, the people around wards of court are informed annually. As Senator Norris noted, two decades passed without any audit of funds. That is not right. These amendments will change that and make the investment of funds transparent in respect of oversight and management.
In other areas, the Bill introduces a lot of transparency to the protection of the most vulnerable. In respect of managing money, we all know money sometimes attracts people who may not have the best interests of the person at heart. At least, everybody needs to know what is going on when the funds are managed by the courts. Amendments Nos. 27, 239 and 244 aim to bring about three changes that are crucial to making this Bill one that will work for the vulnerable person. They assert that the purpose of court management of funds is the support of the welfare of the relevant person, provide for annual reports on the funds to the court and the relevant person and establish a safeguard against the freefall of funds. Having spoken to people who speak for very vulnerable people, I know that the changes proposed in those three amendments are necessary and I ask the Minister of State to support them.
When we look at amendment No. 244, are we looking for something that is too certain? I would be prepared to reintroduce this amendment on Report Stage with sections 121(1)(a), 121(1)(b), 121(4)(a), 121(4)(b) and section 121(5) retained and sections 121(2), 121(3)(a), 121(3)(b), 121(3)(c) and 121(3)(d) removed. Section 3(a) states that:
Assets must be invested in a manner designed to ensure the security, quality, liquidity and profitability of the portfolio as a whole, so far as is appropriate, having regard to the nature and duration of the expected liabilities.
This section might be looking for too much security. How does one ensure security? We would all love to know that in respect of every share we invest. I urge the Minister of State to accept amendments Nos. 27 and 239. We will be pressing the matter because we have discussed it previously. If Senator Norris is in agreement, I would be prepared on Report Stage to look at retaining sections 121(1)(a), 121(1)(b), 121(4)(a), 121(4)(b) and 121(5) and removing 121(2),121(3)(a), 121(3)(b), 121(3)(c) and 121(3)(d) in respect of amendment No. 244. I am being more realistic in making a bit of a deal with the Minister of State in this regard. Senators Conway and Cummins and I would like to support Senator Norris in this regard. I thank Senator Norris for carrying out a lot of research on it and I also thank the groups we met.
I probably came in a bit too early when I raised this issue earlier on. I also support what I referred to at the beginning of the debate. I support Senator Norris. As Senator Keane so eloquently put it, it is important we ensure that the most vulnerable people have money that is being invested. I add my support to that. I also ask the Minister of State to accept the amendment.
This type of collaboration and discourse is what Seanad Éireann should be about. It is our responsibility to challenge the Government and this means people on the Government side as well. I get criticised because I probably do it too much. The money of the most vulnerable should not be subject to boom and bust. The rest of society suffers enough from that. I would probably have gone a step further than Senator Norris and insisted that the investment be in blue chip Government bonds because I certainly would not trust the banks. We saw what happened to the banks and all that went with it.
Perhaps there is justification for insisting on Report Stage that any new moneys that come in for any new people who find themselves in this situation would be invested in guaranteed Government bonds and products. The only way we as citizens can offer blue chip assurance is by investing in Government bonds and products. We have a duty to do everything we can and to make sure this legislation underpins that to ensure that it is guaranteed because, ultimately, we do not have the right to gamble with this set of resources.
I will not repeat what has been said but I commend Senator Norris on tabling these very important amendments. I mean no disrespect to the parliamentary counsel but the amendments are very well drafted. I agree with colleagues on the opposite side that they should be accepted. The case outlined by Senator Norris concerned an unfortunate individual who ended up in dire financial straits because of the manner in which his money was invested by the Courts Service.I would go further to suggest he might have a legal case against the Courts Service because I consider it to have been completely irresponsible in the manner in which it invested that money. Moreover, as Senators Norris and Keane have pointed out, it is totally unbelievable that in respect of an arm of the State, no audit has been conducted for more than two decades. I urge the Minister of State to accept these amendments. Perhaps, as Senator Keane suggested, too much financial security is being sought but when one is dealing with wards of court and vulnerable people, I do not think one can have too much security. Consequently, if the Minister of State cannot accept the amendments now, I urge her to agree to consider them again on Report Stage.
I listened with interest because as public representatives, this issue has come to the attention of all Members, namely, the awful devastation when people get a statement and make a discovery about money they believed to be absolutely secure and people will ask how much more secure can it be than when the courts are minding it for them.
However, we are moving away from a court system and that is why the amendments are not relevant. While I understand perfectly what the Senator is saying, as soon as this Bill is enacted everyone will be out of wardship within a three-year period. Their funds will be returned to them to manage as they please, in some cases with co-decision-makers, and with the advice of people such as their bank manager, a financial adviser, their parents or perhaps a friend who has knowledge of these matters.
I commend the Senator's foresight because the Government is moving away from a court-based system. While the Bill was being debated in the Dáil, one amendment proposed the extension of wardship should be done within six months and the argument was put to the Government that this could not be done because some people are ready right now to exit wardship. Some people will not be ready even at the end of the three-year period, I refer to the need to put together the security package that gives them the freedom to make those decisions for themselves, but on exiting wardship, their funds will be returned to them. The Government has asked for advice on the three amendments and in particular, has sought advice from the National Treasury Management Agency, NTMA, because its staff, as Senator Norris rightly observed, have more expansive knowledge in this regard and they worry that perhaps it would not be beneficial to the individuals involved, except for people who get enormous sums. Moreover, even this will change in the future, in terms of how payments will be made.
In the case of such repayments, for instance where a child is damaged at birth, the Government is changing to a more progressive funding model whereby people will be paid through their lives rather than expecting to invest. Even though it is an enormous sum, as the Senator noted, one has no indication as to what can happen in respect of stocks, bonds and all those things unless one puts it into the drawer at the bottom of the bed and does nothing with it. That is the only protection but I am not certain it would last very long.
However, the Government is moving away from wardship and moving away entirely from a court-protected system and people then will be empowered, with protections and advice from whomsoever they choose in respect of those matters. Everyone then must trust that the right decisions are made; people sometimes do not but then again, that is what this Bill is about, namely, the right to make the wrong decision for oneself, because we all make wrong decisions. While I commend the Senator's foresight, the Government is moving away from what the Senator is proposing and I know he will appreciate that.
This is what amendment No. 239 is about, namely, a person who is a special visitor and designated to advise is a person who has financial expertise. As Senator Norris noted previously, there is no point in such a person having medical expertise. It will be necessary to have financial "expertise and experience of financial matters, as respects the capacity of persons", even though that person might not be a medical practitioner. While I grant to the Minister of State that we are moving away from the courts, this is why such a provision still is needed. However, in moving away from the courts, I note the Bill contains absolutely nothing in respect of the special visitor or the person put in care to specify there should be an annual report or financial statement to that person. This is absolutely relevant for transparency and is necessary.
I was about to raise that point mentioned by Senator Keane on the special visitor and advice for a person when he or she comes out of wardship of court. This must be specific and as Senator Keane has stated, it must be someone with financial expertise. In addition, adequate advice ought to be on hand for the relevant family members who perhaps are not au faitwith the worlds of banking, finance or investment. It can be daunting for such people to be obliged to manage money as well.
The Minister of State is inclined to be helpful, albeit only up to a limited point. She has stated we are moving away from wards of court but while that may be true, this Bill addresses wards of court. This is what it is about and its central plank pertains to wards of court.
Yes, but it still deals with it and makes provision for it as it stands. As for the period of three years or whatever it is, what about a person who is severely disabled mentally and has no relations? What happens to him or her?
She then went on to say they should be allowed to make mistakes like everybody else. Is it responsible on the part of society to hand somebody who is brain-damaged a huge bunch of money and tell him or her to go off and make mistakes? That is Reaganomics; it really is western capitalism at its worst to let these people have their pensions and then to allow them rot in the gutter. I do not believe in letting people who are so disadvantaged make mistakes. Proper safeguards are needed to ensure they do not make mistakes. One cannot project what will happen three years into the future. There always will be people who will be reliant on guidance of whatever kind and to include this amendment, even if it is guidance for future legislation, is absolutely necessary. I am proposing an annual report in light of the fact that there were no audits of any kind and no account given for two decades. This appears blindingly obvious to me and even were it only for the next three years, it would be absolutely necessary in light of the history of these funds.
No, there will be circumstances in which nobody is there to take care. The court then will appoint and the court will be responsible. That is what this is about, that is, in any situation in which a person is not available or deemed unsuitable to act as a decision-maker, the court retains this responsibility. While the court retains responsibility, Members are trying to ensure that within that responsibility, there must be safeguards for the people themselves. Such responsibility will come out through an annual report to the court and to the person appointed, to make that quite clear. While a court may appoint a person, I refer to the elapse of two decades without an audit and it is to be hoped this kind of thing would not happen again. The purpose of the amendment is to try to bring greater transparency to the process.
There will be enough concern in respect of this legislation among families who have somebody with a disability. I now am speaking directly to the people with that experience because I acknowledge there is concern that this somehow is going too far or that it is giving a level of discretion to certain people who do not have capacities. While I accept this, the type of language expressed by the Senator really is not helpful.Clearly, if someone does not have capacity, which is very rare, and does not have relations or a circle of friends to call on, the court will appoint. It will do so on the basis that the person it is appointing will have responsibility for the well-being of the person concerned, including his or her financial property and welfare. That is essential.
Everyone has the right to make a wrong decision. We hope to have people around us who love and respect us, who will be charged with caring for us and directing us. This is something we need to get our heads around. The director of the decision support service will be obliged to give financial information. It would not be appropriate for a special visitor to give that advice. For instance, what would happen if it did not work out? Would the person concerned be held liable? The director can give advice on financial matters and the possibilities in that regard rather than directing someone to invest. We all make these decisions every day. With enough support and decision makers around us, even people with limited capacity will be able to make them.
The courts will appoint a suitable person and the director will accommodate by ensuring it is someone from a panel who will be an accountant or a fund manager and will have the expertise required to manage extensive funds. It is important that Senators realise we have made provision to cover all possibilities. We have been formulating the Bill for three years and there is not a single issue we have not come across or addressed. It is not the first time we have come across this issue. We all have. The special visitor would not be the appropriate person to do this as his or her remit is entirely different; it is to ensure the person concerned is properly looked after and, where there is an investigation to be held, that it takes place. The co-decision maker or person appointed to support the person who lacks capacity has to make a statement every single year, not to the courts but to the director. If he or she is appointed to advise on financial issues, he or she will have to make a statement to the director on those financial affairs. If the issue concerns health, welfare or other aspects, that is different. He or she has to make a return every single year to the director and, if the director finds that this has not happened, he or she will have the power to either remove the person or investigate the matter. There are extensive powers for the director and extensive safeguards for the relevant person. This needs to be understood.
There is not a single element in terms of amendments, suggestions or contributions of which we have not thought. Where we had not thought of something and where it was new and possible, we brought it forward by way of an amendment.
The Minister of State says it is the responsibility of the visitor to ensure the ward of court is properly looked after. How can the visitor do this if he or she does not have the money to do so? I cited the case of somebody whose principal asset had been reduced in value from €510,000 to €150,000.
No. I was only allowing the Minister of State to interrupt me because I am very courteous. There has to be some engagement on financial matters on the part of the visitor. It is very difficult for people with limited mental capacity. There are lots of people of complete sound mind who are useless in dealing with stocks and shares. What hope does somebody with reduced capacity have? I simply do not know the answer. I am in direct contact with people who are not happy and will not be happy with the Minister of State's response either. Is she is prepared to give any consideration to the amendments?
The Minister of State has spoken about the annual financial reports going to the director. Amendment No. 244 reads:
Annual financial reports on the condition, progress, and management of relevant person’s funds; both liquid funds and investments; will be made available to—(a) the court, and
(b) relevant persons.
The Minister of State has said there will be a report to the court, which is fine. She is saying subsection (a) is satisfied by the report going to the director, while subsection (b) refers to relevant persons. Perhaps I might be helpful by suggesting we all put our heads together and look at the matter again before Report Stage. I want to see openness, transparency and responsibility in dealing with funds.
Amendments Nos. 30 to 42, inclusive, and amendments Nos. 44 and 45 propose to align the provisions relating to decision-making assistants with those already agreed for co-decision makers. Amendment No. 30 is intended to clarify that a person must be 18 years or over to be appointed as a decision-making assistant, reflecting the responsibility involved in supporting decision-making by a vulnerable person. I propose amendment No. 31 arising from the consultations held with disability groups last month. A request was made that a relevant person should be able to have more than one decision-making assistant. I explored the feasibility of the request and I am pleased to propose an amendment which will allow a person to appoint more than one decision-making assistant. This will enable an elderly mother to appoint all of her children to act as decision-making assistants and to have the right to source information on her behalf.
Amendment No. 32 proposes to delete subsections (6) to (12), inclusive. This is to align the provisions on assisted decision-making with those already agreed for co-decision-making. Amendment No. 33 proposes to align the categories of persons who will not be eligible to be decision-making assistants with those agreed for co-decision- makers. The provisions are largely similar to those already in place in regard to decision-making assistants.
Amendment No. 34 proposes that a decision-making assistant's agreement will be null and void if there is a decision-making order, decision-making representation order, advanced health care directive or a registered enduring power of attorney already in place in respect of the decisions encompassed by the decision-making assistant agreement. The reason for this amendment is if a person has a decision-making representative to take decisions on these matters it confirms that the relevant person lacks capacity to make these decisions.
Amendment No. 35 proposes to insert a new section 13 to align the categories of persons disqualified from being decision-making assistants with those already agreed for co-decision-makers; for example, a spouse or civil partner will be disqualified if they separate from the relevant person and if the marriage or civil partnership is dissolved. Similarly, a cohabitant will be disqualified if they separate from the relevant person. These provisions are intended to protect the relevant person against a former partner seeking to use the person's incapacity to gain control over the person's property and affairs. The provisions are largely similar to those already set out in the Bill in regard to decision-making assistants. As a new provision they provide for the situation in which a civil partnership is annulled or dissolved in a State other than Ireland. The ex-civil partner would be disqualified from acting as a decision-making assistant in these circumstances.
Section 13 retains the provision which disqualifies persons from being decision-making assistants if they have had for example safety or barring orders issued against them in respect of the relevant person. The existing provisions preventing a person from acting as a decision-making assistant on property and affairs, if convicted of fraud, etc., is also retained.
Amendment No. 35 seeks to make clear that the functions of a decision-making assistant will be as specified in the decision-making agreement. It is intended to underline the control that will continue to be exercised by the relevant person over the agreement. As previously indicated, he or she will be free to revoke the agreement at any time. Amendment No. 36 is intended to make clearer that the decision-making assistant’s role will be to assist the appointer in terms of accessing relevant information. Relevant information is defined as information to which the appointer is entitled and that is needed for the purposes of the decision. The objective is to ensure that a decision-making assistant does not seek to use the role to source other information that is not relevant to the decision. Amendment No. 37 is a technical amendment to clarify the intent of the provision. Amendments Nos. 38 to 42, inclusive, are drafting amendments to make the provisions clearer. Amendment No. 44 inserts a new provision to clarify that a relevant decision is the appointer’s decision even if taken with a decision-making assistant.
Amendment No. 45 proposes to insert a new section 12 dealing with complaints in relation to decision-making assistants. The new section mirrors section 27 of the Bill which deals with complaints against co-decision-makers. The proposed new section sets out new provisions enabling complaints to be made about the suitability or conduct of decision-making assistants. Provision is made here for the director, having been satisfied that a complaint is well-founded, to apply to court for a determination. An additional safeguard is provided by allowing the director to investigate a matter and bring it to court notwithstanding that no complaint has been received.
I welcome amendment No. 31, in particular, which provides for flexibility in the terms and number of decision-making assistants that an individual can choose. I welcome also amendment No. 45. We will get to amendment No. 162 later. These amendments provide for safeguards in the form of clarifying how complaints can be made about co-decision-makers and decision-making representatives, especially those who may be acting beyond the scope of their authority or failing to respect the individual's will and preferences. They are welcome additions to the Bill.
I, too, welcome amendment No. 31. It is important that decision-making can be shared among siblings, relations, friends or whoever and that it is not all placed on one person. That one can appoint more than one person is welcome.
In respect of people with an intellectual disability, in particular, the advice when appointing people to various committees has always been that one would appoint two people in order that the person with the intellectual disability would have somebody to rely on, somebody to advise and somebody to befriend because he or she can feel isolated, as we heard earlier.
Amendments Nos. 47, 51, 58, 61, 62, 64, 65, 71, 81, 92, 93, 105, 108, 117, 118 and 132 are essentially technical points to address some issues needing to be resolved in the provisions on co-decision-making.
Amendment No. 47 proposes to amend the text that defines how a person may be considered suitable for appointment as a co-decision-maker. The person has to be "capable" of performing the role. Amendment No. 71 proposes to amend the provisions relating to dissolution of civil partnership to encompass dissolutions occurring in other states. The former civil partner will be ineligible to act as a decision-making assistant or co-decision-maker. Amendment No. 81 is intended to make clearer the remedies available to a third person if he or she unknowingly relies on a co-decision-making agreement which is later found to be null and void. My amendment proposes that the third party would not be prevented from recovering damages for any loss incurred as a result of unknowingly relying on a null and void co-decision-making agreement.
Amendment No. 92 proposes an additional ground for objection to the registration of a co-decision-making agreement, namely, that a false statement is included in the application to register the agreement. Amendment No. 93 is intended to specify more clearly that the director can take action only if an objection has been received within the time period of five weeks specified in subsection (1).
Amendment No. 105 proposes an additional provision that would allow the director to make inquiries where an incomplete report has been submitted and to be satisfied that the report is in order. This provision allows the director the flexibility to accept an incomplete report where the circumstances warrant it. The provision would benefit co-decision-makers who are caring for the relevant person and who may not have the time, because of that caring responsibility, to submit a report that is absolutely in line with the regulations but where the information submitted confirms that there are no issues arising with the operation of the co-decision-making agreement.
Amendment No. 108 clarifies that the grounds for complaint against a co-decision-maker is that he or she is acting outside the scope of his or her functions. Senator Jillian van Turnhout clearly expressed her views in this regard. Amendment No. 117 is intended to specify more precisely that the court can make a determination when an appeal has been made under the new subsection (3) and within the time limit of 21 days specified in that subsection.
Amendment No. 118 is a technical amendment to delete the phrase "which was the subject of a complaint to the Director". The reason for the amendment is that the court may make a determination both on an issue which was the subject of a complaint to the director and on an application made by the director where no complaint has been received. In the latter case, the director will make an application where he or she believes that a serious issue has arisen in relation to the operation of the co-decision-making agreement which warrants consideration by the court.
Amendment No. 132 is a technical amendment to specify the cross-reference between the obligation in section 17(8) for an appointer or a co-decision-maker to notify the director of the nullity of a co-decision-making agreement and the corresponding provision in section 30 setting out the director’s role when this notice has been received.
I have a concern in relation to amendment No. 65. I ask the Minister of State to listen to what I have to say and perhaps consider revising it and coming back to it on Report Stage. Amendment No. 65 provides that a co-decision maker may refuse to acquiesce with an appointer's decision where it is reasonably foreseeable that the decision will result in harm to the appointer or to another person. I believe this is too restrictive on the autonomy of the appointer. We all enjoy the dignity of risk to take decisions that can carry a risk of harm to ourselves. For example, if the appointer wishes to consent to a new surgery which she believes will benefit her condition but the surgery has a reasonably foreseeable risk of harm, would we really want a co-decision maker to be able to prevent her from taking that decision? I believe this amendment should be revised to ensure that the harm, in addition to being reasonably foreseeable, should be imminent and of a grave nature.That would bring the Bill closer to its goal of respecting the will and preferences of the person concerned. I ask the Minister of State to take another look at the amendment because I have a concern about offering choice. I argue all the time for what is best in the interests of the child. I realise that when one is no longer a child, we are all allowed to make decisions as adults that may not necessarily be in our best interests. That is what we want to do and we should be allowed to do so. This amendment is not in keeping with the spirit of the Bill. We should, therefore, consider inserting the words "imminent and of a grave nature". Who will have the power to make a decision about undergoing new surgery?
Amendments Nos. 52 and 109 are technical amendments to remove the reference to "step-child" in the definition of "immediate family" that will apply under the Bill. That is because a step-child is considered to be a child of the family and does not need to be referenced separately in the definition.
I wish to inform the House that I plan to bring amendments to this section on Report Stage. These amendments will involve the transfer of responsibility for legal representation, for those appearing before mental health tribunals, from the Mental Health Commission to the Legal Aid Board. This is something that we have been considering and were asked to do.
I also plan to bring amendments to provide for access to legal representation for persons facing capacity hearings, under section 34 of the Bill. Again, an issue that we were asked to address in order to make sure that people have access to legal aid.
Amendments Nos. 135 to 142, inclusive, propose a series of amendments to the provisions regarding applications to court under Part 5. Amendments Nos. 135 to 137, inclusive, involve the deletion of the provision whereby the court can make a declaration in terms of a person’s capacity to marry. As the Bill is not altering the existing law in terms of marriage, it is not appropriate that the court should have a role in making a declaration regarding a person’s capacity to marry. The capacity to marry is governed by extensive statute law and common law which should more appropriately apply to it rather than this Bill.
Amendment No. 140 involves the deletion of provisions concerning costs for applications. It is appropriate that section 33(7)(a) should be deleted as the principle that the costs are borne by the parties who retain legal representation is a general one. There is no need to restate it in this legislation. It will apply to this Bill without having to be specifically referenced.
Similarly, with regard to section 33(7)(b), the Civil Legal Aid Act 1995 will apply to proceedings under this Bill and there is no need to reference it specifically. I am removing a provision that might be detrimental to a relevant person in section 33(7)(c). As it stands, a person or an organisation can take an application to have a person declared as lacking capacity and can have the legal costs borne out of the person’s assets. That potentially creates the risk that a person might mischievously seek a declaration that another person lacks capacity to gain control of his or her assets. There would be no disincentive as the costs of the proceedings would be borne by the relevant person. I propose to remove this provision for this reason,
Amendment No. 142 is a technical amendment. As the Bill specifies the parties who are to be notified of applications, it is not appropriate for these to be determined by rules of court.
Amendments Nos. 149 to 162, inclusive, propose a series of amendments to align the provisions on decision-making representatives with those agreed for co-decision-makers. The intention is that the more robust safeguards agreed for co-decision-makers would be applied to decision-making representation.
Amendment No. 149 seeks to make clear that a person must be 18 or over to be appointed as a decision-making representative in view of the level of responsibility potentially arising from this role. Amendment No. 150 seeks to clarify the boundaries that will apply between the functions of a decision-making representative and the terms of an advance healthcare directive or an enduring power of attorney. The court will be required to ensure the order appointing a decision-making representative is consistent with the terms of an advance healthcare directive and with the powers of a designated healthcare representative. The order will also have to be consistent with the terms of an enduring power of attorney and with the functions of an attorney. The reason they take precedence is because an advance healthcare directive and an enduring power of attorney are direct expressions of the will and preferences of the person.
Amendment No. 151 proposes to align the categories of person who will not be eligible to be decision-making representatives with those agreed for co-decision-makers. The provisions are largely similar to those in place in respect of decision-making representatives.
Amendment No. 152 inserts a new section 37. The section proposes to align the categories of person disqualified from being decision-making representatives with those agreed for co-decision-makers. A spouse or civil partner will be disqualified if he or she separates from the relevant person and if the marriage or civil partnership is dissolved. Similarly, a cohabitant will be disqualified if he or she separates from the person. These provisions are intended to protect the person against a former partner seeking to use the person’s incapacity to gain control over the person’s property and affairs. They are largely similar to those set out for decision-making representatives. One new provision is that they provide for a situation in which a civil partnership is annulled or dissolved in a state other than Ireland.
Amendment No. 153 proposes two new subsections which seek to respond to the concerns of Senators that the duty to ascertain the relevant person’s will and preferences be given priority. The first duty will be to ascertain, in so far as is possible, the person’s will and preferences. The second amendment proposes to move the provisions of subsection (4) to become subsection (2) of this section. The provisions are as agreed. The intention is to highlight the duty on the decision-making representative to act as the relevant person’s agent and in service to that person.
Amendment No. 154 moves the provisions, currently in section 38(5) into a new section. This is in the interests of clarity as the previous section 38 covered too many different issues. No change is envisaged to the provisions as agreed.
Amendment No. 155 proposes to move the provision currently in section 36(8) into section 37 in the interests of structuring the Part more clearly. No change is envisaged to the provisions as agreed.
Amendment No. 158 proposes to modify the provisions of section 38(7) to specify that the scope available to a decision-making representative to make a decision on the carrying out or refusing of life-sustaining treatment is subject to the terms of an advance healthcare directive. Similarly, the amendment proposes that the decisions of a designated healthcare representative will take precedence over those of a decision-making representative on these matters. This is because the advance healthcare directive is the direct expression of the will and preferences of the relevant person on such matters. Equally, the designated healthcare representative will have been appointed specifically by the person to take these decisions if and when they arise.
Amendments Nos. 159 and 160 propose a new section 39 which set out the provisions that would apply in terms of the register of decision-making representatives. The provisions are in line with those agreed for co-decision-makers. It is proposed that the Minister would specify by regulation the bodies and classes of person entitled to access the register. In the interests of the person’s privacy, it is not appropriate that a register would be accessible to the public. However, it is intended that anyone needing to know if a person has a decision-making representative will be able to apply to the director for that information.
Amendment No. 161 proposes a new section 40 setting out the provisions relating to the reporting obligations to be imposed on the decision-making representative. These are in line with the provisions agreed for co-decision-makers. They retain the provisions in subsections (6) and (7) of section 36 but add a number of key protections. They set out the procedures that will apply if a decision-making representative fails to submit a report or submits an incomplete report. The director will contact the decision-making representative on this issue. If the decision-making representative continues to fail to submit a complete report, the director will have the power to apply to the court for a determination on whether the decision-making representative should continue in the role. It is important to add these provisions as a safeguard for the relevant person. Reporting is intended as the primary means by which the director will supervise the decision-making representative. The director will be unable to perform this supervisory function adequately if he or she does not have the possibility to engage with the decision-making representative on the reports or to seek the court’s determination where the representative fails to comply with the obligations.
Amendment No. 162 proposes a new section 41 which sets out the complaints mechanism that will apply where complaints are made against decision-making representatives. A person will be able to make a complaint where the representative is acting or proposing to act beyond the scope of the functions specified in the court order.A person will be able to make a complaint where the representative is acting or proposing to act beyond the scope of the functions specified in the court order. A complaint will also be possible where the representative is not suitable such as where he or she is in conflict with the relevant person or not able to perform the role. It is proposed that the director will be able to investigate the complaint to see if it is well founded. If it is, he or she will be able to apply to the court for a determination. He or she will also be able to launch investigations on his or her own initiative. If a complaint is not well founded, the director will notify the complainant who will be able to appeal the decision to the court.
I have one concern about amendment No. 154 in this group. It provides that a decision making representative can not only be remunerated for expenses incurred in the performance of his or her duties but also if approved by the court. This payment will be made from the assets of the relevant person rather than by the State. I am concerned that this violates the constitutional right of the relevant person to private property. In addition to the human rights violation in having one's legal capacity to make decisions removed, the amendment ensures the person whose right to make decisions is being removed will also have to pay for the privilege of this violation through his or her own assets. I ask the Minister of State to reconsider the amendment.
Amendments Nos. 163 to 169, inclusive, relate to the process by which wards of court will be discharged from wardship. Amendments Nos. 163, 165 and 166 provide that the wardship court shall not review the capacity of a ward but rather make a declaration under section 46(1). The amendments are necessary because the existing provisions do not correctly describe what is envisaged. Where a person has been admitted to wardship without reference to his or her capacity such as in the case of many minor wards, he or she can be discharged from wardship without reference to his or her capacity. The wardship court will not look again at the ward's capacity, which is what the previous provisions implied. Instead, it will review the ward’s case and, where necessary, make a determination as to his or her capacity. No change of policy is envisaged by these provisions.
A new provision is proposed that will allow the wardship court to continue its jurisdiction, pending the discharge of a ward or the ward’s migration to the new options foreseen under the Bill. The amendments will allow payments, for instance, to continue to be made, pending the court hearing on a ward’s case. This is to ensure there will be continuity in the provisions in place for wards throughout the process of moving from wardship to discharge or the new options. The amendments do not change in any way the deadlines already set in the provisions. Wardship will be phased out for adults within three years of the commencement of Part 6. A minor ward will be entitled to a court hearing of his or her case no later than six months after his or her 18th birthday.
Amendment No. 169 proposes to replace section 47 with a new section. The provisions repealing the Marriage of Lunatics Act 1811 and the Lunacy Regulation (Ireland) Act 1871 have been moved to section 7. Some saving provisions are needed to ensure orders of the wardship court made before this Part is commenced will remain valid, even if the 1871 Act is repealed. This is to provide certainty in terms of payments to third parties and so forth.
It is proposed to delete section 49. The provisions of the Bill are essentially for adults. Adult wardship will be abolished over a three year period. It is important that boundaries not be blurred between the current arrangements and the arrangements foreseen under the Bill. To make this clear, the role of the director of the decision support service will relate exclusively to adults. He or she will not have a role in the case of minor wards. Any matter relating to minor wards will continue to be handled by the Office of the Wards of Court. The amendment makes clear the separation that will apply between the Office of the Wards of Court and the decision support service.
Amendment No. 164 reads:
In page 56, between lines 13 and 14, to insert the following:“(b) a relative of a friend of the appointer who has had such personal contact with the appointer over such period of time that a relationship of trust exists between them,”.
The UN Committee on the Rights of Persons with Disabilities has stated in general comment No.1 that under Article 12 of the convention, perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity. Since the Bill is being developed as part of Ireland's preparations to ratify the UN convention, the functional assessment of mental capacity must be replaced with a process of interpreting the will and preferences of the individual. This will ensure that when people need help to make decisions, they will be supported in doing so, rather than have their legal rights to make decisions removed.
On a broader note, Inclusion Ireland has concerns about the review of the position of wards. I highlight these concerns and invite a response from the Minister of State. Inclusion Ireland argues that Part 6 of the Bill applies to people who are wards of court. The sections therein allow for a review by the ward or somebody who appears to the wardship court to have sufficient interest or expertise in the welfare of the ward. Inclusion Ireland has received communications from a number of concerned families in this regard. Many family members are concerned about the reference to the "welfare" of the ward and the broadness of the category, as preference in persons acting as co-decision makers and decision making representatives is given to a relative or friend of the appointer who has had such personal contact with the appointer over a period of time that there is a relationship of trust between them. Inclusion Ireland is stating it would be preferable if this category was introduced before the aforementioned phrase "sufficient interest or expertise". I ask the Minister of State to comment on this suggestion.
I agree with the Senator that it is important to highlight in the Bill the fact that applications can be made by relatives or persons who have a relationship of trust with the ward. I am looking at the feasibility of the Senator's proposal and seeking legal advice on the matter. Given that the Bill is driven by consultation to ensure we get it right and subject to the legal advice being what we expect it to be, I will be tabling an amendment on Report Stage broadly along the lines of that proposed by the Senator. I hope that will satisfy him.
In terms of wardship, it is important that we be very clear in the Bill.Quite recently, I had a visit from a very caring and very young family. They wanted to talk to me about an adult relative who was awaiting a court hearing about wardship. The adult in question was very worried about it and not necessarily want it. The family wanted to support him in his decision. I am very anxious to get this legislation through because so many people are waiting on it. What I found quite interesting was that the judge in the case, who was very enlightened because he knew that this legislation was coming, advised them to look for an adjournment until the legislation came in so that they would not have to come into wardship. In the circumstances, this was the wisdom of Solomon. Sometimes we do not realise that when we are developing legislation, so many people will be affected by it in such a fundamental way. Sometimes we think that, apart from what we publicise, nobody else takes any notice of or interest in what we do in here. In this case, they rang the ward of courts office and when they asked the woman at the other end about this legislation, she told them that if they had said that to her last year, she would have told them that she had been listening to it for seven years but that the legislation was actually on the way. We sometimes forget that. The ward of courts issue is a serious one for people and is not always necessary. There are other ways of managing our affairs other than by the court and that paternalistic approach. We are looking at the amendment and I would appreciate it if it was not pressed as I promise to come back on it.
I did not have a chance to say it but I do recognise that there are a huge amount of amendments. We were very critical of other pieces of legislation where amendments were coming forward that had not been sought by an awful lot of people. It is important to acknowledge that a lot of the amendments here have been sought by groups and I commend the fact that they are being taken on board. I am glad to hear the Minister of State say that she is looking at this amendment so I will withdraw it and I reserve the right to bring it back on Report Stage if we do not see a suitable amendment that is to our liking.
I also welcome that. I know that Sarah and Fiona from Inclusion Ireland are here. I know Sarah has been here from the beginning of the debate and that it is an issue she has raised with me so I welcome the fact that the Minister of State has said that she is seeking legal advice.
This goes back to an issue we discussed earlier. It is about the advance health care directives. The Minister said she would come back to this. I understand that sections 59 and 60 relate to that area. I do not know if the Minister of State wishes to discuss it now or later but I wanted to raise it because it is proposed to delete the section that deals with it. I wish to raise those concerns that I put on the record earlier about the provisions among health service users who feel that their human rights will not be respected on the same basis as others. I understand that there are up to 400 individuals who are lobbying on this issue and who are specifically affected by it. My understanding is that ten groups met with the Department. I have raised this issue, which is a very serious concern.
I understand the Minister of State has said that she might not agree with the issue but as she has done with previous issues, I have noted that she has listened to almost all the amendments so far and is at least willing to take it on board. Without going over what I had earlier, the same issue is there. There are very serious concerns around the advance health care directives to the effect that if somebody puts something in an advance health care directive about treatments they do not wish to have, it will be recognised as well in the competencies. I ask the Minister of State to take another look at that one as well.
The Senator and I have known each other for very long and I am not in the habit of saying that I will do something when I will not. In this instance, we have listened very carefully, I have read material and the officials have had extensive listening exercises. This is specifically about people with mental health difficulties. I would still continue to assert that this is not the right piece of legislation for it. We can have the debate as to whether or not we should have mental health legislation, although it is a bit late in the evening for it, because that is a different argument. Should it be combined with general health? This is an issue for another day.
When it comes to advance health care directives, I am not saying that people with a mental health difficulty should not have advance health care directives. Far from it, I have always believed they should have them but that is very specific in respect of a particular condition and that condition is dealt with under different legislation. That is really the point I am making. I am not convinced by the arguments otherwise. It is not because I have not listened because I have. I have read everything that has come to us. The officials have met for an extensive period of time. All of the advice tells us that it should be dealt with under the Mental Health Act. We will deal with it under the revised Mental Health Act and advance health care directives will be in there as well.
I welcome the Minister of State's response but I wish to put on record that there are people who believe that the Mental Health Act is being used as an excuse to exclude the advance health care directives from the Bill. They feel that the deletion of sections 59 and 60 should allow for that to be addressed. An election is pending and legislation has been coming through the Houses at a fast pace but at the same time there are concerns that the change might not happen and this issue will not be addressed until further down the road. That is the reason I am being asked to raise the matter with the Minister of State. If sections 59 and 60 are being deleted, why can we not put the measure into this Bill to copperfasten it? If it is the Minister of State's belief that it needs to be addressed then it should be included in the Bill. I will not labour the point but I have been asked to raise it.
I understand that. I know there is an election coming. There is no avoiding that, but I do not think it is a good enough reason for doing something that I do not believe should happen. We have the general scheme of the new mental health Act. There was a comprehensive review and the legislation will be introduced. I accept it will not be done in this Government's term but it will be addressed because it is being worked on as we speak. These things do move along. A change of Government does not change these things and they progress. I do not believe the measure should be in the Bill. It could be more comprehensively dealt with in the mental health Act. I might be wrong, but that is my belief.
Amendments Nos. 194, 196 to 198 inclusive, 200, 204 to 210 inclusive, 212, 214 to 231 inclusive, 233 and 234 are all related to the provisions on advance health care directives in Part 8. The proposed amendments do not involve any substantive changes to the underlying policy of these provisions. Rather, they are all minor technical amendments to refine the language in the sections in question in order to clarify more precisely the intention of the relevant provisions on advance health care directives or to ensure greater consistency with similar provisions in other Parts of the Bill.
I move amendment No. 195:
In page 74, line 34, after “directive” to insert the following:“other than a request for the provision or continuance of artificially delivered nutrition and hydration”.
I did not have an opportunity to welcome the Minister of State to the House and I do so now. Perhaps you could assist me with a matter, a Chathaoirligh. Senator Norris and I had intended to move Senator Feargal Quinn's amendment No. 23. We did not get to do that but it does seem to me that the issues he raised are important in terms of the Irish Kidney Association or recognised donor registration bodies. Does my adverting to the issue at this point act in ease of his reintroducing the matter on Report Stage? I realise that we did not move the amendment and I am anxious that it would not be impossible to move it on Report Stage for want of a discussion on Committee Stage. Do I understand the procedures of the House correctly? I am anxious that Senator Quinn would not miss his opportunity to raise the issue on Report Stage.
It may be. My understanding is that if an issue arises out of a discussion on Committee Stage that it can be moved on Report Stage. I hope that what I have said will suffice for such a discussion because the issues Senator Quinn raised were very important and it is important that they would be discussed. Senator Quinn raised the issues in the amendment and I raise them now.
I am just asking a question, a Chathaoirligh, namely, whether by virtue of raising it now myself and touching on the importance of the issue during Committee Stage, Senator Quinn might therefore be in a position to table the amendment on Report Stage.
I thank all of the experts on Standing Orders here present. Amendment No. 195 amends section 67 on page 74. Currently, the Bill provides that an advance health care directive is legally binding only when it relates to the directive maker's refusal of treatment. Section 67(3)(b) states that a request for a specific treatment is not legally binding. This means that every decision against life, so to speak, no matter how unwise or unsound - that is to use the terms employed in section 66(2) - is granted greater legal protection than every decision in favour of life, even where the directive maker simply seeks to have food and water provided to them through artificial means. Advance health care directives are inapplicable in the case of the administration of basic care but, according to section 68, artificially-delivered nutrition and hydration do not constitute basic care.
Many Irish people very reasonably hold that the provision of food and water, regardless of how it is delivered, is part of basic care. No doubt at least some of those people would want their advance health care directives to reflect that very reasonable conviction on their part. While the decision in the 1996 ward of court case probably precludes basic care from being defined by the Bill as incorporating artificially-delivered nutrition and hydration, that is not really the point because it does not prevent the Oireachtas from treating advance health care directives requesting the provision of food and water as legally binding.The Bill as it stands clearly favours life ending wishes over life saving wishes. Denying citizens the right to make a health care directive requiring the provision of food and water, whether delivered artificially or naturally, undermines their right to life and freedom of conscience. This is not a constitutional claim as such - one might argue that it is a moral claim - but constitutionally there must be a question mark over the Bill on this point however speculative it is to argue. It seems odd that people are not supported by the legislation in seeking to vindicate their right to life by the provision artificially of food and hydration. I would not claim to be definitive but I argue that this is constitutionally questionable.
Some might argue that to provide an advance health care directive which mandates the provision of artificial food and hydration in a certain situation could put huge pressure on medical resources but I do not think we want to go down the road of medical resource arguments.
The amendment I propose is restricted to requests for artificially delivered nutrition and hydration. With regard to any possible objection that this would involve unnecessary burdens for the patient towards the end of their life, it would be entirely possible to add any necessary qualifiers to the provision I propose. For example, it could be indicated that the guarantee to continue or provide artificially delivered nutrition and hydration would be inapplicable in the final stages of terminal illness. The proposal is for a restricted application, but I would be grateful if the Minister would consider it.
I wish to speak to amendment No. 203 which proposes to delete section 68(7). Advance health care directives are a welcome addition to the Bill and will provide a way for people to articulate their will and preference for a later date in which their views may become unclear or unknown. This can be useful for treatment decisions relating to end of life situations, mental health crises and age related disability. A coalition of organisations in the fields of mental health, disability and older people have consistently called for advance health care directives to apply equally in the general health and mental health contexts. Too often mental health issues are seen as separate and different, and the same rights and protections are not extended to mental health service users as they are to others. The addition of section 68(7) to the Bill has therefore come as a surprise to me since it effectively excludes the use of advance health care directives when a person is involuntarily detained and treated under the Mental Health Act 2001. The provision is unfortunate because it is precisely when people-----
Maybe if Senator Walsh checks against the Bill when I am talking about a section, he will see I am talking about section 68(7). I am speaking to amendment 203.
I believe the provision is unfortunate because it is precisely when people are treated under the Mental Health Act 2001 that people will wish an advance health care directive to take effect. The use of differential standards for treatment decisions during involuntary detention perpetuates stigma and limits the use of advance health care directives in mental health care settings. Stigma and discrimination have been identified as the greatest barriers to recovery. Even if advance health care directives are legally binding during voluntary admission, the threat of coercion limits the impact of decisions.
A national study by Irish mental health service users has found an urgent need for legally binding advance heath care directives during involuntary detention to promote respect for treatment preferences. Many clinicians assume that if advance health care directives are made binding in the mental health context that hundreds of people will make blanket refusals of all medical treatment, yet there is no evidence to support this. Advance health care directives can actually increase treatment engagement rather than increase refusals. In an Irish national survey the majority of mental health service users stated they would be more willing to adhere to treatment if they had an advance health care directive, suggesting the measure may lead to an increase in treatment engagement rather than refusals. The international evidence also suggests this. The fear that individuals would refuse all treatment, or be left untreated, often results in limitations on advance health care directives during involuntary detention. The research suggests that mental health service users are more interested in using advance health care directives to express a preference for a particular treatment over others, rather than using the directive to refuse all treatments. To make a blanket denial of these preferences and concerns when a person is involuntarily detained, at precisely the moment such directives become important, is unjust. This is why I suggest amendment No. 203.
I will now turn to amendment No. 201. I am very surprised and concerned that an informed and considered decision to end life sustaining treatment should be viewed as equivalent to a suicide attempt. To put these situations together is unbelievable and, having worked on the Joint Committee on Health and Children's Report on End of Life and Palliative Care in Irelandand having looked at the issue extensively, I find it objectionable.
I support amendment No. 203 proposed by Senators van Turnhout and Zappone. I have outlined my reasons previously which are similar in vein to the advance health care directives. There are concerns that the impending legislative provisions on advance health care directives discriminate against anybody who may experience mental ill health. Given that one in four Irish people experience some form of mental health difficulty during their life this issue could apply to any of us. It is felt by a number of experts that the proposed legislation blatantly excludes the use of legally binding advance health care directives for the treatment choices of those subject to involuntary detention under the Mental Health Act 2001. These experts believe it is clearly discriminatory under the EU Convention on the Rights of Persons with Disabilities, which the Government is planning to ratify in the near future.
The use of differential standards reinforces stigma and the notion that the preferences of individuals with mental health conditions are not respected on an equal basis with others. There were 80,457 admissions to Irish psychiatric units and hospitals in 2013, of whom 11% were involuntary. Similar legislation in the United States was litigated as discriminatory under the Americans with Disabilities Act of 1990 in the case of Hargrave v Vermont in 2003. After filing a legal challenge for differential treatment in the United States Court of Appeals, Ms Nancy Hargrave asserted:
It seems fundamentally unfair that I choose or refuse chemotherapy which is saving my life, but I do not have the same right to choose or refuse psychiatric medication.
The findings of a national study published in The Journal of Ethicson medicine and public health suggests an urgent need for legally binding advance health care directives for those who have been involuntarily detained under the mental health legislation in order to provide a sense of control over future treatment, to enhance recovery and to promote trust and respect. There is a compelling argument. The Minister has said she has looked at the issue in great detail. There seems to be quite a body of evidence internationally that supports the call. There are many people in Ireland also making that call and it warrants further debate and thought between here and Report Stage. I support the calls to have it looked at again.
Senator van Turnhout's amendment has definite merit. I have worked with the mental health services for nearly 30 years.It is anomalous to preclude a person suffering from major mental illness from the safety of a health care directive. Major, enduring and relapsing mental illnesses are often accompanied by loss of insight by the person suffering from the condition and it is at that very moment when pre-planning by that person is a human rights issue. In all other areas of the mental health services, we try to encourage a collaborative and team approach which includes the patient in decision-making. At a time when the patient is least able to collaborate in his or her own treatment, we preclude him or her from the protection of the directive. I am very interested in hearing the Minister of State's response to Senator van Turnhout's worthy amendment.