Seanad debates

Wednesday, 28 September 2022

Assisted Decision-Making (Capacity) (Amendment) Bill 2022: Committee Stage

 

SECTION 1

10:30 am

Photo of Eugene MurphyEugene Murphy (Fianna Fail)
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Amendment No. 1, a Government amendment, is related to amendments Nos. 2, 58, 59 and 63 to 74, inclusive, all of which may be discussed together, by agreement.

Government amendment No. 1:

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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Amendments Nos. 1 and 2 provide for the inclusion of new subsections that simply reflect how the Credit Union Act 1997, the National Disability Authority Act 1999 and the Mental Health Act 2001 shall be construed following amendments made to those Acts in the Assisted Decision-Making (Capacity) (Amendment) Bill. I wish to speak also to amendment No. 58, which is a Government amendment in the group.

Amendment No. 58 proposes changes to the application of the 2015 Act, including decision support arrangements and the validity of advance healthcare directives, AHDs, to persons whose involuntary mental health treatment is regulated by Part 4 of the Mental Health Act 2001. This matter was raised in the pre-legislative scrutiny report back in April and has been raised throughout the various Stages of this Bill, including by Senators in the Second Stage debate. I am pleased to be able to introduce these amendments today and show the commitment my colleagues in government and I have to making progress on this matter.

I stress that the amendments being introduced today are not the final word on this matter and acknowledge that more is needed to achieve full parity of care. While it remains the case that fundamental reform of involuntary care under the 2001 Act is a matter for the reform of that Act under the Department of Health, the amendments being introduced today signify an important move away from a paternalistic, best-interests approach and extend supports to cohorts previously excluded from the supports under the 2015 Act.

Persons whose involuntary treatment is regulated under Part 4 of the Act must meet the definition of "mental disorder" within the 2001 Act. I am using the terminology used in the Act. Nowadays we would regard it as inappropriate, but, with regard to what I am talking about amending, I have to use the definitions contained in the Act.

Under the 2001 Act, a person may be treated under Part 4 if there is an immediate and serious likelihood of that person harming himself or herself or another person or where, in the opinion of the relevant clinicians, treatment is required to improve the condition or a condition would deteriorate without treatment. Reforming treatment considerations where a person may be likely to cause harm is a more complex undertaking than can be achieved in this Bill, despite all the efforts that have been made. Therefore, I cannot, at present, extend decision support arrangements to the A category spoken of, nor can I extend it to persons whose detention arises from a referral from the criminal justice system, due to several complex technical and legal issues. However, along with Senators present and advocates, I remain committed to continuing to move towards parity in this area. I look forward to the fundamental reforms that the Minister for Health will bring to the 2001 Act, which I know Senators are involved with and will address the necessarily more fundamental reforms related to how the law should address the issue of possible harm.

In dealing with the amendments before us, I must address the 2001 Act as it stands. Unfortunately, it is not possible to extend the Act's provisions in their entirety in that regard. Notwithstanding this, amendments I am introducing today will extend the provision of assisted decision-making supports to those treated under the B category. This will ensure a clinical view of a person's best interest will no longer, by itself, be placed above that person's own will and preference and that a person's will and preference will prevail. This represents a significant extension of the provision, and I hope it will benefit the treatment of those whose treatment has not to date been within their control.

On the question of a significant extension of the application of advance healthcare directives, I acknowledge there is more work to be done. With regard to our very extensive engagement with the Department of Health over the summer, we believe this is as far as we can go in this legislation. The remaining elements may be addressed within the reform of the 2001 Act, which I am aware has been subjected to pre-legislative scrutiny. I hope to get a full draft of the associated Bill from the Department of Health shortly.

Photo of Frances BlackFrances Black (Independent)
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The Minister is welcome to the House. I am very grateful to Ber Grogan of Mental Health Reform for helping out with much of this over the past few months. I am also very grateful to Dr. Fiona Morrissey of NUIG, who has also been very helpful to me.

An advance healthcare directive is a statement set out by someone when he or she has the capacity to make decisions about his or her will and preferences for care and treatment in the future. The directive comes into effect if and when the person becomes unwell and no longer has decision-making capacity. People can make advance healthcare directives regarding a broad range of issues, such as the types of medication they prefer and types of therapies that work best for them, in addition to refusals of treatments such as electroconvulsive therapy or certain medications that cause intolerable side effects for them. An AHD enables a person who experiences mental illness to make plans while healthy. If complied with, it gives people the peace of mind of knowing that their wishes will be respected even when they are at their most vulnerable and unable to fully advocate for themselves. They are essential tools used to uphold the dignity and agency of people experiencing mental health difficulties.They are a source of security and safety amid the fear and chaos that can accompany mental ill health. If complied with, advance healthcare directives encourage people to seek the help they need because they can be assured their rights will not be violated if it is judged that they will subject to involuntary detention. This is a cause of major anxiety for people who are impacted by this.

Irish research on AHDs undertaken by Professor Fiona Morrissey was extremely helpful to me in developing my understanding of this issue. The research shows that they can reduce involuntary admissions and promote recovery. It is a phenomenal piece of work that Professor Morrissey has done. AHDs improve outcomes, save the State money and protect people from potential harm. As the legislation currently stands, people who have been involuntarily detained will have their AHDs disregarded. This is a massive betrayal of trust and it cannot be allowed to continue. Removing the greatest protection of an individual’s agency and freedom to choose, a document that is made under conditions of health incapacity creates a significant risk of abuse.

The Minister knows that Ireland has obligations under the United Nations Convention on the Rights of Persons with Disability, UNCRPD. People with mental health issues are understood under the UNCRPD to have a psychosocial disability and they must be empowered and protected from discrimination. The amendment about I propose will further that aim by removing a discriminating section of the principal Act. I hope the Minister will consider it.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I will speak about amendment No. 58. There is some concern around this amendment given its potential implications for the bodily integrity of people with psychosocial disabilities. It is a form of substitute decision making that runs contrary to the requirements of the UNCRPD. I urge the Minister to look at the amendments Senators Black, Hoey and I have tabled on advance healthcare directives. The Minister acknowledged there is some work to be done on this and indicated that the Minister of State with responsibility for mental health and older people was developing legislation on it. When will we see legislation on this issue?

Photo of Annie HoeyAnnie Hoey (Labour)
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I echo Senator Black's words of gratitude to some of the people we have been working, particularly members of Mental Health Reform and some others who have been good and have done as much work as the Department has done on this legislation. They have been casting an eye over it, advising and putting forward different ways in which it could be tied in with human rights. A question has come up on which I ask the Minister for clarity. It may just be my reading of this but I am not at all clear about how the Government amendments address the AHD exclusion for involuntary people. AHDs were always legally binding where a person was not detained under Part 4 of the Mental Health Act. The text still states that the AHD shall be complied with unless the person is detained under Part 4 of the Mental Health (Criminal Law) Act. From my reading of this, it still excludes involuntary people from legally binding AHDs. When this legislation was going through various discussions and Stages I understood that the Government would only exclude people detained under the Criminal Law (Insanity) Act. However, the wording here seems to suggest that those detained under Part 4 of the Mental Health Act 2001 will also be excluded. Is this a technicality or am I and others misreading it? This is concerning for some of the advocacy groups that have been reading through the legislation. Will the Minister clarify exactly what the position is?

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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I echo those concerns. I have received phone calls which upset me and I am not the better for. The idea that a document that is legally binding in many circumstances and is put together when the person has absolute capacity could be suspended in any circumstances is appalling. Has the Irish Human Rights and Equality Commission, IHREC, been consulted on this? I expected these amendments to be more strongly in support of people with mental ill health. As much as we desperately need to have this Act in place for many good reasons, I question the wisdom of proceeding if it has to be done in conjunction with mental health legislation that will not come before the House until some point in the future. The idea that people in the State will find themselves in a position of absolute powerlessness when they could have had a voice, one which they had put in place themselves, is unacceptable. I am deeply uncomfortable with codifying that. I would like to understand whether this has been proofed by the IHREC? Some of the cases described to me on the telephone are outrageous. We cannot have an inherent bias in how people are treated when they have mental ill health.

I have now become alive to all that it happening in the committee chaired by Senator Black. I will watch and read its proceedings with great interest because we cannot codify something that perpetuates an inherent bias and discrimination. We cannot do that.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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In regard to the work being undertaken by the Department of Health on the reform of the Mental Health Act 2001, heads of Bill were published earlier this year. My understanding is they have gone or are going through the pre-legislative scrutiny process with the committee. Once that pre-legislative scrutiny process is over, the outcome will influence the final draft that will be brought to Cabinet. The process is advanced and we are awaiting the final draft of the legislation to come to Cabinet. I can seek a little more clarity from the Minister for Health before Report Stage when I will be able to give more clarity. It is a matter within the remit of the Department of Health but, as I stated, the heads of Bill have been done and a pre-legislative scrutiny process has taken place.

In regard to the questions from Senators Hoey and Seery Kearney, under the 2001 Act where a person's treatment is involuntary, it is regulated by Part 4, which is divided into two subsections. The first is where there is deemed to be an immediate and serious likelihood of the person harming himself or herself or another person. The second is where, in the opinion of the relevant clinicians, treatment is required to improve a condition or a condition would deteriorate without treatment. Under the existing legislation, both of those circumstances allow for involuntary detention under Part 4. As the Bill originally stood, in both of those circumstances an AHD would not apply. The amendment I am bringing forward today will allow an AHD to apply in the second of those circumstances, where, in the opinion of the relevant clinician, treatment is required to improve a condition or a condition would deteriorate without treatment. Where a person is detained under this subsection in Part 4, the exclusion contained in the original 2015 Act on the applicability of AHDs will no longer apply.However, it will still apply under the first subsection. We have engaged extensively on this with both the Office of the Attorney General and the Department of Health. We are not able to broaden the application of AHDs further in the Bill than the broadening I am bringing forward today in the context of these and other amendments. We absolutely see the importance of AHDs and of legislating for the situations about which Senator Seery Kearney and others have spoken. However, part of that requires changes to, and a much broader revision of, the 2001 Act. That is within the remit of the Department of Health and will require a systematic review and revision of that legislation. We have advanced the situation by broadening the application of AHDs and narrowing the exception that is provided for in the Act. There is a strong recognition within the Department of Health that it needs to take up its part of the work now in respect of the revision of the 2001 legislation. That process has begun by way of the heads of Bill that were approved by the Cabinet earlier this summer.

Photo of Eugene MurphyEugene Murphy (Fianna Fail)
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Are Members satisfied with the Minister's response?

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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There are concerns that it could take years for the Mental Health Act 2001 to be reformed. Is that a worry people should have?

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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The focus of the Government on delivering reform of that legislation is demonstrated by the heads of Bill that have been passed by the Cabinet and gone forward for pre-legislative scrutiny. We all know legislation takes a while to complete. We have gone through a number of lengthy Bills in this House that have taken some time. Once the heads of a Bill are agreed and the pre-legislative scrutiny process is finished, a good part of the work is done. The reform of the 2001 legislation is vital for a range of areas. This is just one issue. Across both Houses, there is a strong recognition of the need to invest in mental health services and fundamentally reform the legislation. Earlier, I referred to a phrase we all now regard as unacceptable but that is still contained in our legislation. Phrases like it need to be removed. That is one of the many reasons the Government prioritised bringing forward heads of a Bill and one of the reasons, as I understand it, the Department of Health sees that legislation as a priority. I am happy to come back on Report Stage with greater clarity for Senators on a clearer timeline from the Department of Health for the progress of that Bill.

Photo of Frances BlackFrances Black (Independent)
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That would be helpful. There is no reason this provision cannot be removed. Will the Minister give a little more explanation in this regard? It impacts everyone but especially those who are vulnerable. Dealing with it must be a priority. Is that something he will consider as we go forward? We need a full discussion on it before Report Stage. The provision needs to be taken out and it would be helpful if we could discuss it further.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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The Minister did not indicate whether IHREC has had a role in this. There is also the question of where we stand in regard to the ratification of the optional protocol to the UNCRPD and whether these amendments will be acceptable in that regard. Do people have a right to take litigation outside the State when there is a cultural bias against people with mental ill-health? That bias is a fact that has been proven again and again. Unfortunately, in some instances, the people who are giving evidence as to how they are being discriminated against are the very people who are not being believed and who, due to their particular condition, find themselves labelled as lacking in capacity. They are in an incredibly vulnerable position and now we have this provision being left in legislation that disempowers them even when they have put a document together and have capacity.

There is a combination of issues, which include denying people the power they could have, our slowness to ratify the optional protocol and our refusal to make provision to empower people within the Bill. The approach is not centred on the very people to whom this legislation is intended to give a voice. We should ensure that the most vulnerable are supported by the legislation and that they have a voice all the time. They do not have a voice and we are managing to codify that deficiency. I am a member of a party of government, which means one takes the hits and votes with the Government even when one personally disagrees with a particular measure. I will find it very hard to do so today but I will do it because I do not believe in suddenly picking and choosing the issues on which one supports one's party. This issue really needs further thought and the opportunity to hear the experiences of people as a consequence of the current situation in the State. It is frightening to be part of a measure that is going to codify further discrimination.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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I am happy to engage further with Senators on these amendments. The reason the Bill was not passed before the summer was to allow for a pause in which we engaged extensively over the summer with the Office of the Attorney General and the Department of Health on this specific matter. There was a focus, in particular, on the issues that arise when people are detained under the Mental Heath Act and the basis for their detention is that they are a risk to themselves or to somebody else. We looked at people's ability in that context to refuse treatments that might lessen their potential risk to others and the balance that can be achieved in that regard in the law. The legal advice I have received is that this balancing mechanism is best done through reform of the Mental Health Act, not in this Bill. The second category of persons, who are not covered by the relevant Part, are those whose involuntary detention is due to the opinion of the relevant clinician that treatment would improve their condition or their condition would deteriorate without treatment. Under the amendment I am bringing forward, those persons will be able to rely on the provisions of their AHD.

The Government has made a commitment to sign Ireland up to the optional protocol to the UNCRPD. The passage of this legislation, the enactment of the 2015 legislation, the abolition of wardship and the operationalisation of the decision support service are essential. The continuation of a wardship process is a major barrier to our signing up because it makes us so clearly in violation of the optional protocol. My Department, in conjunction with others, is conducting a review to see what other legal issues need to be addressed before we are in a position to sign up to the protocol. Passing this legislation is a key part of that because we cannot sign up while we maintain an outdated notion of wardship.

I am happy to engage with Senators, as I have done in the past.I wish to be realistic in that substantial work has been done on how far we can advance this issue in this legislation - we have advanced it significantly further - notwithstanding the legitimate issues that have been raised by Senators. I am happy to engage with them.

Photo of Eugene MurphyEugene Murphy (Fianna Fail)
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I acknowledge that some Senators have concerns but, in fairness, the Minister is trying to be helpful.

Amendment agreed to.

Government amendment No. 2:

In page 7, line 21, to delete “Sections 72 and” and substitute “Sections 72 to”.

Amendment agreed to.

Section 1, as amended, agreed to.

Section 2 agreed to.

SECTION 3

Photo of Eugene MurphyEugene Murphy (Fianna Fail)
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Amendments Nos. 3 and 42 to 44, inclusive, are related and may be discussed together.

Photo of Frances BlackFrances Black (Independent)
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I move amendment No. 3:

In page 8, between lines 6 and 7, to insert the following: “(e) section 85(7);”.

Amendment No. 42, which was tabled by the Minister, will mandate compliance with AHDs made by some people detained under the Mental Health Act but not others. Those admitted under section 31(b), because the clinician believes that they will deteriorate or substantively improve if detained will have their wishes respected. Those detained under section 31(a) who are deemed to be a risk to themselves and others will have their wishes disregarded. That is the concern. Two-tier approaches to human rights obligations rarely work, as Senator Seery Kearney said earlier.

The Government's amendment creates a slightly perverse incentive, for even well-meaning psychiatrists who believe that the preferred treatment plan should override the detained person's wishes to detain them under the wrong subsection in order that they can proceed with full discretion. This observation is not meant as an attack on the professionalism or compassion of the psychiatric profession, but it is a recognition that we should draft laws in a way that insulates vulnerable people from potential abuse.

This system is a very complex and fallible nexus of human psychology, clinical judgement and legislation and, ultimately, doctors face the difficult task of fitting the nuances of human behaviour and distress into one box or another. This is very subjective. Limited categories can never hope to capture the full complexity of an individual's circumstances.

I acknowledge what the Minister said about having conversations with the Attorney General, but we have to be mindful of this. We have to be careful. The concern is whether a person's dignity or human rights will be upheld. It should not depend on such a flimsy measure, if that makes sense to the Minister.

My amendment would remove any aggravation and ensure the human rights and dignity of involuntarily-detained individuals are protected. It would provide clarity and comfort for individuals who need it. It is in the hands of a psychiatrist or doctor to make that judgement, which is very worrying.

I ask the Minister for further clarification on this. He may feel that he is repeating himself but I am concerned. I ask that we have further conversations before Report Stage.

Photo of Annie HoeyAnnie Hoey (Labour)
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It is very welcome that the Minister seeks to reform and expand AHDs and to ensure that preferences of people with psychosocial disabilities are protected but I am concerned that amendment No. 42 creates further confusion because it creates a piecemeal provision.

It feels as though the amendment pays lip service to the protection of rights while allowing them to be undermined on the basis of so-called risk. Risk is not a neutral term in a disability context. Ideas of risks and dangers have been used for decades to justify the denial of rights and abuse of disabled people, from institutionalisation to forced sterilisation. We have all heard stories of how people have been treated.

All the evidence demonstrates that people with psychosocial disabilities are at increased risk of being subject to violence and abuse. I wonder whether this creates a two-tier approach to the validity of AHDs, where a person can rely on one where he or she is detained on the ground that he or she requires treatment and that can only be provided at an approved centre, but not where the person is detained where it is believed that he or she may be at risk of causing harm.

Will the Government create situations where someone may believe his or her AHD will be binding, should he or she be subjected to the Mental Health Act but may, nevertheless, be forcibly treated? I am not sure that this is as clear as it could be. If the current reforms to the Mental Health Act are similar to the heads of Bill the Government published in July last year, this amendment will mean very little, as the Government is proposing to amalgamate the need for treatment on the grounds for the criteria of protection and harm.

The amendment retains the discriminatory exclusion of people who have been conditionally discharged under the Criminal Law (Insanity) Act 2010 from relying on their AHDs. These are people who have experienced stigmatisation due to being subject to the Criminal Law (Insanity) Act 2006. It is unacceptable for them to be further excluded by being unable to have their decision-making rights respected.

To ensure that the AHDs are available in a non-discriminatory manner to anyone, perhaps this amendment should be withdrawn. I do not know that it will do what it says and I am interested in what the Minister has to say on that.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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We have a difficulty where we apply a directive in one instance and not in another. We currently have a situation whereby people who need the support of the system, with all its good aspects and its flaws, rather than volunteer themselves for full transparency to get a fully comprehensive treatment, will pay lip service just enough to get by, because to volunteer the truth of what is really happening for them may lead them to a place where they are completely and utterly disempowered. Without having protection and a voice in every scenario that may arise, we will have people repeatedly going back into the system because they are not getting the full treatment.

If I believe and look as though I have a broken arm, I may deny it because I am afraid of what the consequences will be. Thus, I will not have an X-ray or even describe the situation and I will just look for paracetamol to patch it up as a short-term solution, because I am afraid to enter into a system.

Here, we are codifying a two-tiered system and we are putting in place an incentive for people not to get the proper treatment and just to get a little bit of a patch to get them over a situation when they most need treatment. We run the risk of people not disclosing in their own interests because they are afraid of the consequences.

This is the difficulty of moving ahead without mental health reform. I worry about that and the considerable power imbalance between even the most professional and fantastic psychiatrist and a person on the other end of that.Even the most well meaning sentences can be found and experienced as threatening. If a person is in that situation, someone might say, “We can get a child protection order if this comes to it”, in an incredibly compassionate and well meaning way. However, that would not be how I would hear it if it were said to me. Again, I would have concerns around this.

Photo of Eugene MurphyEugene Murphy (Fianna Fail)
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Does Senator Warfield wish to come in?

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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There is something that I want to put on the record regarding the Mental Health Commission, which launched its 2021 annual report recently. It stated criteria for involuntary detention is quite wide-ranging, as it stands, in the Mental Health Act. People can go in voluntarily and unexpectedly be made to stay involuntarily. The Mental Health Commission 2021 report states: "If a voluntary patient indicates a wish to leave an approved centre they can be detained if the staff are of the opinion that the patient is suffering from a mental disorder".

In 2021, there was only a 64% compliance rate among mental health inpatient services with the requirement for individualised care plans. Some 36% - over one third – of inpatient mental health services are not complying with the requirement to provide individualised care based on the person’s preferences. It shows, therefore, that legally binding advance healthcare directives, AHDs, are vital to ensure that the will and preferences are respected for all people in those contexts.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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I tabled amendment No. 44 because concerns have been expressed at meetings of anaesthesiologists with regard to the Act perhaps being too restrictive compared with similar legislation in the UK, namely, the Mental Health Capacity Act 2005. It is in the context of doctors in emergency situations having to make what they consider to be pragmatic decisions.

The Royal College of Surgeons in Ireland gave me an example of a scenario wherein three teenagers over the age of 18 would sign an advance directive not to be resuscitated if brought unconscious to the emergency department, where each pair of teenagers from the trio acted as witnesses for the third, making the directives all legally valid. One teenager is subsequently brought in unconscious, perhaps it is drug-related or accidental, and the advance directive is found in his or her pocket. Under the UK Act, a doctor, knowing that the patient is fully salvageable and may be helped, can make a pragmatic decision to treat the patient and save his or her life, suspecting that the patient perhaps did not intend to apply the advance healthcare directive in this particular scenario or perhaps changed his or her mind. Under the Irish Act, a doctor would not be allowed to do that with the current wording of our legislation.

I have further information that I can certainly furnish to the Minister and his officials. I would be very grateful if he could have a look at it. I will not divide the House today. I will move and withdraw the amendment, to allow some consideration of it so that we can perhaps bring it back on Report Stage. I would be very grateful if the Minister could look at what may be the unintended consequences of the legislation we are talking about today in that kind of scenario, and what has happened in the UK to rectify it.

Photo of Erin McGreehanErin McGreehan (Fianna Fail)
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I wish to share a thought. This Bill is supposed to be empowering for so many people. We all could speak at length about our disappointment. However, I just want to put on the record that we are dangling a carrot in front of people, telling them that we are working towards and listening to their will and wants, and we are improving our advance healthcare directives. We are then kicking it off into the ocean, saying it might not actually work. We might not listen to them unless they can swim out and catch it. I just do not think it is acceptable that we are putting through a disempowering Bill. We are talking about ratifying the optional protocol and saying this Bill is necessary for it. Not listening and not empowering is certainly not a way forward to implement and adhere to the UN Convention on the Rights of Persons with Disabilities. I just wanted to put that on the record.

Photo of Eugene MurphyEugene Murphy (Fianna Fail)
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As there are no more queries, I call on the Minister.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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I would not agree with the analogy that Senator McGreehan used. We are dealing with legislation that is long overdue. I still do not have a clear understanding why the 2015 Act was not initiated or used. However, I have been given the job to do that and that is what I am seeking to do in this amending legislation.

Some very legitimate concerns have been raised about one element of this legislation. My Department and I have listened to them in terms of slowing the process, undertaking engagement and looking to see how we can solve this particular issue. The difficulties with the 2001 Act in a 2023 situation are relevant to this issue and those Senator Warfield listed out in terms of the issues that the Mental Health Commission has raised. That is why it is incumbent on all of us, Government and Opposition, to get mental health reform through both Houses of the Oireachtas.

I am certainly committed, and I am more committed having gone through this process, to using my role as a Minister to deliver that reform. However, in terms of what I can deliver in my role in this particular legislation - which is not centred on reform of mental health legislation, but on assisted decision-making – having seen the very real issues that Mental Health Reform and others have raised, I brought forward a solution that addresses some of those issues. I have been very upfront; I am not addressing the whole thing.

However, as someone who believes in progressive politics and moving the line forward all the time, what I see happening here is us moving the line forward. I also see a clear recognition of the next step that has to be taken and, if not a detailed timeline, a clear process that has begun with the heads of Bill coming through Cabinet with the pre-legislative scrutiny process undertaken and with Government and Opposition in both Houses very much supporting and recognising the need for this to happen. That is what I would speak to the process and where we are in it, and my belief in terms of pushing the line forward as far as one can in each particular step.

I am happy to engage with Senator Doherty. Reading this and listening to her, I have a concern in that it seems that a consequence – I need to go through it in detail – would be that an advance healthcare directive legitimately made is being disregarded because of a particular view a medical professional took at a particular time. In many ways, that is almost the antithesis of what the advance healthcare directive is about. That is not to say the Senator is not raising a legitimate issue. However, when officials and I looked at it, we thought that was problematic. Like I said, I am happy to speak further to Senator Black and engage further with Senator Doherty on that issue. However, I just want to put on the record that I would need significant convincing in terms of either the issue or, indeed, the approach being adopted.

I wish to come back to something Senator Seery Kearney referenced in terms of people coming in and treatment. The advance healthcare directives apply to voluntary admissions. What we are talking about here is involuntary admission under Part 4 of the legislation. As I said, the legislation distinguishes between those two categories. We are now going to apply advance healthcare directives to one of those categories where previously that was not going to be the case. I see that as progress, but I have also been very clear that I recognise that there is a further step to be taken.From all the work I have done, I do not believe I can take it in this legislation. I understand others have a different view. I am happy to talk further. It has not been for want of trying that we are bringing forward this particular amendment today.

Photo of Frances BlackFrances Black (Independent)
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I commend the Minister. He has done a lot of work on this and I hear what he is saying. I know he has got this to a certain level. We just feel we need to push it that little bit extra. It is very important that we try our best to strengthen the legislation. I hear what the Minister is saying. He has done a phenomenal amount of work and I look forward to engaging with him further on this. Maybe we could have a conversation with IHREC and the Mental Health Commission. I do not want to be making more work for the Minister and I understand he is under fierce pressure but we have to push this as far as we can from our end. For those people who do not have a voice, we have to be their voice in here. I am here today for those people who do not have a voice. I have to try to push this as best and as far as I possibly can. I will revert to the Minister if that is okay. I thank him and his officials for all their work on this issue.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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I thank the Minister for his willingness to engage with us. I will certainly come back with evidence that bears out the request for what looks, on the face of it, like opposition to what we are trying to do in the Bill. For the record, I refer to the Wooltorton case in the UK, which occurred in 2007. Doctors in an emergency setting carried out the advance healthcare directive and the wishes of the patient and the coroner found against them thereafter because the conditions were not as directed in the advance healthcare directive. The case has caused ethical disquiet ever since. There has to be a fine balance between what we are trying to do and the very rare exceptions. I will certainly provide the Minister with all the evidence I can and look forward to engaging with him in the future.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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I agree with the Minister that this legislation is about far more than one particular group of people. Anyone who is subjected to the ward of court system desperately needs this Bill to pass. From that perspective, I am fully behind the legislation. However, the fact is that there is a community of people in our State who are being left behind and left without a voice. The threshold between voluntary and involuntary is not as clean as we would like to think. Even within the scope of "involuntary", I have had enough circumstances put to me that make me deeply uncomfortable about how someone can find himself or herself in an involuntary situation almost by stealth.

I agree with incrementalism and that we should legislate incrementally. I have enough experience in the surrogacy realm to experience a little eyebrow-raising nervousness when I hear the Department of Health is working on things and still expresses reluctance despite the obvious need for what is in front of them. Last week was an example of that in my experience. I accept and appreciate that the Minister is bringing this matter as far as he can. I know I am being very hard. Having the privilege of standing here as legislators is all the more reason that we should be hard and strong in favour of those who may be rendered voiceless. It is very important. I concur with Senator Black that IHREC needs to be engaged with before we get to Report Stage.

Amendment, by leave, withdrawn.

Section 3 agreed to.

Section 4 agreed to.

NEW SECTION

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move amendment No. 4:

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

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

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

(2) The exercise of legal capacity may be achieved either—
(a) by the relevant person, acting legally independently, and with decision-making supports and reasonable accommodation as needed, or

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

(c) where capacity falls within the purview of paragraph (b) there shall be a requirement that the decision be guided by the decision-making assistant, co-decision-maker, decision-making representative, attorney or designated healthcare representative’s best interpretation of the relevant person’s will or preferences and how these are to be applied to a specific decision(s),
in applying paragraph (c), ‘best interpretation’ means the interpretation of the relevant person’s behaviour and/or communication that seems most reasonably justified in the circumstances. Decision-making assistants, co-decision-makers, decision-making representatives, attorneys, or designated healthcare representatives must be able to provide a reasonable account of how this interpretation was arrived at.”.”.

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

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

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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The proposed amendment seeks to delete provisions that were made as amendments on Report Stage in the Dáil. These provisions clarify the intersection of the inherent jurisdiction of the High Court and the 2015 Act. It is important to note that these provisions do not create new powers for the High Court.The court possesses a constitutional role as the guardian of constitutional rights and it is not the power of this or any other House to remove that jurisdiction.

Pending the delivery of dedicated legislation on the protection of liberty safeguards, it may be necessary in some rare instances to bring matters regarding detention and treatment before the High Court. The purpose of the provision that I moved on Report Stage is to signal that such applications should only be brought when the authority of the High Court is very much needed to determine a matter in which a person’s liberty might be in question, and also to make it very clear that no decision supporter or person appointed under the 2015 Act has the ability to authorise the deprivation of liberty where that is manifestly not the will or preference of the relevant person. As such, the amendments which were introduced in the Dáil are designed to provide legal clarity and to ensure that the oversight of the High Court is actually working to protect the rights of citizens.

The Department of Health is in the process of preparing draft protection of liberty safeguard legislation but pending the delivery of those legal forms it is necessary to signpost to the High Court in order to protect the rights of relevant persons. Deletion of this provision would introduce procedural uncertainty where urgent care may be required and would not serve to limit the constitutional power of the High Court in this regard, in any event, or applications of necessity to the High Court. Again, neither I nor this House has the power to do that. For that reason, it is right that we have a legislative provision with guidance around it rather than just leaving the existing inherent jurisdiction of the court, without any sort of procedural guidance around it. It was on that basis that the amendment was made in the Dáil.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I withdraw this amendment and retain the right to resubmit it on Report Stage.

Amendment, by leave, withdrawn.

Photo of John McGahonJohn McGahon (Fine Gael)
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Both the Senator and the Minister have spoken on amendment No. 5, when speaking on amendment No. 4. How stands amendment No. 5, Senator?

If Senator Warfield wishes, he can speak to the overall section 5, at which point he can raise any point he has missed on the earlier amendments.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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We have not spoken on amendment No. 4 and there are things to say on that amendment. The Minister made his reply and Senator Warfield spoke on amendment No. 5 but I did not speak on this amendment because of the content of both of those speakers. I would like to speak on amendment No. 4, and I thought there was a complete misunderstanding, or perhaps that I was suddenly out of my depth in not understanding what was going on.

Photo of John McGahonJohn McGahon (Fine Gael)
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Have we a way of resolving this as we have already moved and withdrawn amendment No. 4 with the agreement of the House? We can, however, speak to the overall section 5, which includes amendments Nos. 4 and 5, and in that way the same points can then be made by the Senator. Is that fair?

Can I suggest to Senator Warfield then that he move and withdraw amendment No. 5. We can then move to the overall section, and all Members can then speak on section 5, which can include discussion of any points that were missed on amendments Nos. 4 and 5.

Photo of John McGahonJohn McGahon (Fine Gael)
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Is that agreed? Agreed.

SECTION 5

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move amendment No. 5:

In page 9, to delete lines 36 to 40.

Amendment, by leave, withdrawn.

Question proposed: "That section 5 stand part of the Bill."

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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Speaking on this section and my earlier amendment No. 4, with the leave of the Chair, this amendment concerned the amending of section 3 of the Act and the recognition of legal capacity. The Assisted Decision-Making (Capacity) Act was drafted to enable Ireland to ratify the Convention on the Rights of Persons with Disabilities, CRPD. However, the Act remains non-compliant with the CRPD. This is because the Act contains a functional test of mental capacity as a means of determining whether a relevant person can exercise his or her legal capacity. This approach results in a form of what is called "substitute decision-making" rather than supported decision-making. The UN Committee on the Rights of Persons with Disabilities, in general comment No. 1 states: "The functional approach attempts to assess mental capacity and deny legal capacity accordingly". It goes on to say: "Article 12 does not permit such discriminatory denial of legal capacity, but, rather, requires that support be provided in the exercise of legal capacity".

Despite this clarification, Ireland introduced a reservation to Article 12 upon ratification, signalling its intention to maintain systems of substitute decision-making. When Ireland enters into dialogue with the UN committee in Geneva, like other countries before it, it will be asked to consider removing this reservation and to commit to the full implementation of supported decision-making as required by the CRPD.

Ireland was among the first countries to reform its capacity law in light of the CRPD and could claim to be a world leader in this domain again if it removes the functional test of mental capacity and abolishes all forms of substitute decision-making, as countries such as Costa Rica, Peru and Colombia have done in their subsequent reforms. While these are relatively recent, they have been developed as a result of decades of activism by disabled people’s organisations and the grassroots in each country, and these reforms have been subjected to intensive parliamentary scrutiny and have had broad support from the Judiciary, law commissions and academic researchers.

In a report on pre-legislative scrutiny, the Joint Committee on Children, Equality, Disability, Integration and Youth recommended that the functional test of capacity should be removed and replaced with an obligation to acknowledge, interpret and act upon the relevant person’s will and preferences, in line with the UN Convention on the Rights of Persons with Disabilities. These were made in pre-legislative scrutiny recommendations Nos. 11 and 15. The wording of this amendment is drawn primarily from a draft statutory framework for legal capacity law reform in Canada and developed by two leading scholars on legal capacity worldwide, namely, Michael Bach and Lana Kerzner. If accepted, it would require the tabling of further amendments on Report Stage to reframe the eligibility criteria for the different types of support and intervention under the 2015 Act.

A similar amendment was offered on Committee Stage debate during the Assisted Decision-Making (Capacity) Bill 2013, although at the time no countries had reformed their laws in light of Article 12 of the CRPD. However, now there are three examples of countries which have developed legislation to replace adult guardianship that is fully compatible with Article 12 of the convention as interpreted by the UN Committee on the Rights of Persons with Disabilities.

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

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

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

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

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

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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For some of the reasons the Minister outlined, I do not support the amendment but I know and agree with what the Senators are getting at. Maybe the best way I could address the issue would be to ask how we will supervise the use of the functional test. A very strong recommendation of the committee following the pre-legislative scrutiny was that the functional test be removed. This is because it speaks of a medical model rather than a social model or a model that is absolutely person centred. I understand the need for the test in some instances but it seems to be a relic of a former system that needs to be reviewed. Without the UNCRPD, there is some impotence in that the person has no recourse to somewhere outside the State to review the implementation process and whether the entire system is actually person centred and supports the individual's needs. Therefore, I have concerns about the safeguards included to ensure the needs of the individual are safeguarded. Unfortunately, if there is a dispute after the event, an individual who may have been ill, perhaps for a brief period, will have to give evidence along with individuals who may be medical practitioners of various sorts. It is very difficult to dispute how a test was carried out in the aftermath. How do we ensure cultural change where there is a vulnerable person, alone in their circumstances, being completely disempowered?

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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Some important points were raised. Cultural change is something we discussed to a great extent in respect of other legislation, the Birth Information and Tracing Act, which is very much about moving away from a hierarchical, patriarchal model of decision-making. How is that changing in this legislation? I briefly mentioned the principles section in section 8 of the 2015 Act, the original Act. To further my understanding, I find it useful to consider the Act as a whole, rather than a specific section, and also the notion of the will and preference of the individual being interwoven throughout. Let us examine some of the guiding principles set out in section 8 of the Act:

8. (1) The principles set out in subsections (2)to (10)shall apply for the purposes of an intervention in respect of a relevant person, and the intervener shall give effect to those principles accordingly.

(2) It shall be presumed that a relevant person who falls within paragraph (a)of the definition of "relevant person" in section 2(1)has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Act.

(3) A relevant person who falls within paragraph (a)of the definition of "relevant person" in section 2(1)shall not be considered as unable to make a decision in respect of the matter concerned unless all practicable steps have been taken, without success, to help him or her to do so.

A range of safeguards is set out in section 8. There are ten elements to it. The key point is that the presumption of capacity is at the absolute centre of the legislation. Second, that presumption can be rebutted only where all efforts have been made to assist an individual in terms of their capacity. Everything we are doing in this Bill is to assist people to be able to exercise their own capacity. That is central to what we are achieving.

On the question of how we examine this, a key component is the decision support service. The system is not operating in the ether; it is overseen by a resourced body that focuses explicitly on providing supports to people with some limitation of capacity. That is central to what we are doing. The guiding principles are central to what the legislation seeks to achieve.

Photo of John McGahonJohn McGahon (Fine Gael)
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I welcome to the Visitors Gallery David Burns and Loy McParland from Ravensdale, County Louth, and indeed Deputy Gannon, who is here with his guests. We are discussing the Assisted Decision-Making Capacity (Amendment) Bill, which I am sure they will all agree is important.

Question put and agreed to.

Sections 6 and 7 agreed to.

NEW SECTION

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move amendment No. 6:

In page 10, between lines 28 and 29, to insert the following: "Amendment of section 8 of Principal Act

8.Section 8 of the Principal Act is amended by the insertion of the following:
"(11) The guiding principles contained in subsections (1) to (10) shall be interpreted consistently with the United Nations Convention on the Rights of Persons with Disabilities, in particular, Article 12, and General Comment 1 of the United Nations Committee on the Rights of Persons with Disabilities.".".

Will I call a quorum? Even the mention of the word could trigger one. Could I possibly take the Minister's response to my amendment before I speak?

Photo of John McGahonJohn McGahon (Fine Gael)
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That is no problem.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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This amendment seeks the introduction of a new subsection under section 8 of the 2015 Act which sets out the guiding principles to be followed regarding an intervention being made in respect of a relevant person. The amendment seeks to have the guiding principles interpreted in line with the United Nations convention and, in particular, Article 12 and general comment 1 of the UN committee on the CRPD.

While recognising the proposed amendment is well-intentioned, my position has not changed since earlier Stages and I am not in a position to accept this amendment. It is problematic from a legal perspective as the provision is insufficiently clear for inclusion in primary legislation. I would also argue it is unnecessary from a policy perspective. The convention was drafted as an international treaty, not as a measure for direct inclusion into primary law. Taken as a whole, the convention is too large to allude to in the manner proposed. The text of the convention is primarily by way of statements that set out a standard that contracting parties should aspire to achieve across their respective legislative programmes. From a technical perspective, the language of the convention does not lend itself to inclusion in primary legislation. Rather, it sets general principles which must then be translated into more specific obligations to be introduced into national law.

General comment 1 is not drafted as a statutory provision, but rather as a textual guide to the relevant sections of the convention. It would be highly unusual and legally problematic to grant such language the force of domestic law in the manner proposed. Aside from the technical difficulties with the amendment, since ratification of the convention by Ireland, there is an overarching and existing obligation on public bodies to be compliant with the CRPD. This means that the obligation the amendment intends to create already exists as a matter of domestic law without the need for the proposed amendment.

Photo of John McGahonJohn McGahon (Fine Gael)
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Would Senator Warfield like to speak to the amendment?

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I thank the Acting Chair for his patience. The idea behind the amendment was that now that we have ratified the CRPD, embedding an explicit requirement for the courts to interpret the Act in a manner that gives effect to the convention strengthens the potential for the Act to be interpreted in a manner compatible with Ireland's human rights obligations. The Act was continually referred to by successive Ministers during its development as being an essential part of Ireland's preparation to ratify the UN convention. Inserting this amendment recognises that best practice in this field is continually evolving. It reaffirms Ireland commitment to refine and reinterpret our laws in a manner consistent with our human rights obligations. Introducing this amendment signals Ireland's commitment to a progressive and evolving interpretation of the principal Act in light of emerging understandings of human rights law.

Photo of John McGahonJohn McGahon (Fine Gael)
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Is Senator Warfield pressing the amendment?

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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Like the last number of amendments, I am happy to withdraw it and come back on Report Stage.

Amendment, by leave, withdrawn.

Sections 8 to 12, inclusive, agreed to.

SECTION 13

Photo of John McGahonJohn McGahon (Fine Gael)
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Amendments Nos. 7, 8, 11, 12, 23, 24 and 33 to 35, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 7:

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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I will speak to these amendments generally. These amendments will allow for the DSS to conduct a review of a complaint received prior to undertaking a formal investigation. This will reduce the requirement for the DSS to automatically undertake an investigation on each and every occasion a complaint is made in favour of allowing a more flexible approach which will give discretion to the director to determine where a full investigation may or may not be warranted, based on the circumstances and merits of each individual case. This will reduce the unnecessary burden on the service and service users and build on amendments to date in ensuring that persons are not inappropriately subject to court procedures where that is not warranted, while also ensuring that complaints are appropriately considered and dealt with.

An amendment to complaints under Part 8 will ensure that the director of the DSS will be able to conduct an investigation on his or her own initiative. This was always the policy intention and this provision makes that position clear, improving the harmony of investigative powers throughout the Act. Some necessary technical amendments are also introduced.

Amendment agreed to.

Government amendment No. 8:

Amendment agreed to.

Section 13, as amended, agreed to.

Sections 14 and 15 agreed to.

SECTION 16

Photo of John McGahonJohn McGahon (Fine Gael)
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Amendment No. 9 has been ruled out of order as there is a potential charge on the Revenue.

Amendment No. 9 not moved.

Question proposed: "That section 16 stand part of the Bill."

Photo of Rónán MullenRónán Mullen (Independent)
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Would Senator Clonan like to speak to the issue in the section? It is his opportunity to do so. I also wish to speak to the amendment, but I am happy to give way to Senator Clonan as it is his amendment.

Photo of Tom ClonanTom Clonan (Independent)
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Notwithstanding the restrictions imposed on the House under Standing Order 41, it is important that our most vulnerable citizens have somebody who is known and trusted to act in their best interests regarding the assisted decision-making function. There is quite a deal in the proposed legislation that, in practice, will be difficult and unwieldy in terms of how it might operate in real time. I wanted to raise those concerns. We will return to this later. There is a Private Members' motion to be debated later when we can discuss this more fully. I will return to the matter then.

Photo of Rónán MullenRónán Mullen (Independent)
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I would also like to speak to the section because of the particular issue Senator Clonan has raised. Once again, we find ourselves in a situation whereby the dreaded Standing Order 41 interferes with the ability of Members to put down substantive amendments which deserve to be considered. It would have been appropriate that Senator Clonan's amendment be dealt with because it relates to a proposal from the Joint Committee on Children, Equality, Disability, Integration and Youth, the committee relevant to the Minister's Department, recommending independent advocates in certain situations.

The reason it did so was that many parents of adult children with an intellectual disability have concerns that their children, as relevant persons, could be subjected to undue influence in making decisions under sections 10 or 17 of the principal Act. I encourage Senator Clonan to consider bringing forward his amendment on Report Stage, or at least raising the issue again on Report Stage. Perhaps the Minister might consider it. That might be a more relevant request. In advance of Report Stage, we could examine whether it would be appropriate to appoint an independent advocate in certain situations. Such a person would assist regarding the appointment of a decision-making assistant under a decision-making assistant's agreement under section 10 of the Act or the appointment of a co-decision maker under section 17. Such a person would assist the relevant person.

I mentioned the committee recommended that the Bill provide for independent advocates. I understand it might have been recommendation No. 35. What we are talking about arises in particular in the context of intellectual disabilities. As we all know, Senator Clonan is very well qualified to speak on this issue, and more qualified than I am, but I am very happy to support his very laudable agenda in these matters. Parents of adult children have concerns that children could be exposed to undue influence in regard to appointing decision-making assistants or co-decision makers. The appointment of an independent advocate as a sort of external eyes and ears might alleviate the concerns of parents in these situations.I note that section 100 of the 2015 Act already provides for the appointment of a court friend. An independent advocate would play a similar role to the functions envisaged for that person. In light of the recommendation that came from the joint committee, I ask the Minister to engage on this issue now or commit to engaging on it in advance of Report Stage. Perhaps the issue was dealt with in the Dáil. I do not know. I would be very interested to hear the response of the Minister.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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As the amendment was ruled out of order, we did not give it the usual detailed consideration. Senator Mullen spoke about children . I want to recognise there are many parents whose children are now adults. It is worth remembering that the legislation does not apply to minors; it only applies to adults. We have to acknowledge the concern of parents of adults who have an intellectual disability. The legislation allows for the appointment of court friends. It allows for the help of anyone with a bona fide interest in a person's welfare. There are provisions, particularly the appointment of a court friend, with regard to the application of some of the processes. There is a level of protection. I am happy to give the issue some further consideration. Consideration has been given to this already and the existence of the court friend process was seen as a mechanism to provide greater oversight. It is something we can consider going forward.

Question put and agreed to.

Sections 17 to 25, inclusive, agreed to.

SECTION 26

Government amendment No. 10:

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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This amendment will provide for a single capacity assessment under section 29 of the 2015 Act in line with other capacity assessments required under Part 4. This will ensure that only one statement of capacity is required, either by a registered medical professional or a class of healthcare professional to be prescribed by regulation. This will reduce the number of capacity assessments required under this part. The amendment is further to the reduction of capacity assessments made on Report Stage in the Dáil. It will reduce the administrative burden and cost on the relevant person as well as streamlining the process of accessing decision supports.

Amendment agreed to.

Section 26, as amended, agreed to.

SECTION 27

Government amendment No. 11:

Amendment agreed to.

Government amendment No. 12:

Amendment agreed to.

Photo of John McGahonJohn McGahon (Fine Gael)
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Amendments Nos. 13, 14 and 25 to 27, inclusive, may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 13:

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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These amendments are related to the complaints provisions. They provide that where a court directs that a decision support shall no longer act as such, the director of the DSS shall be required to update the relevant register. Some necessary technical amendments are also introduced.

Amendment agreed to.

Government amendment No. 14:

Amendment agreed to.

Section 27, as amended, agreed to.

Sections 28 and 29 agreed to.

SECTION 30

Photo of John McGahonJohn McGahon (Fine Gael)
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Amendments Nos. 15 and 16 are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 15:

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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These amendments provide for regulations to set out additional persons or bodies eligible to make an application directly to the Circuit Court under Part 5. This will allow such parties to make a court application directly under Part 5 without first seeking permission to do so by way of an ex parteapplication. Where appropriate, this regulation-making power will allow for applications to be brought in a more streamlined and less burdensome way.

Amendment agreed to.

Government amendment No. 16:

Amendment agreed to.

Photo of John McGahonJohn McGahon (Fine Gael)
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Amendments Nos. 17 and 18 are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 17:

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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These amendments will allow for the undertaking of court reporting and research under Part 5. A regulation-making power is being provided for certain classes of persons to make reports on proceedings taking place under Part 5. The necessary access to proceedings will be provided and the identity of a person will be kept confidential in such reporting. This point was raised as an Opposition amendment by Deputy Sherlock in the Dáil. I recognise the value of its inclusion in terms of the lessons that can be learned and ensuring consistency of operation throughout the court system. At its core is the value that transparency and research can bring in improving the operation of the legislation. The proposed amendments provide for this while remaining properly conscious of the privacy rights in matters under Part 5. It is on this basis that I, in consultation with my colleague the Minister for Justice, will make any such regulation. The model we are looking at is the family law court reporting service that has done such invaluable work to provide an understanding of what happens in family law cases which are held in camera. It could allow for a similar type of reporting to take place in respect of these cases. It would be good to have an understanding of the type of cases and the type of legal responses coming forward.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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I absolutely agree. Carol Coulter's work on family law was fantastic and constructive. This raises another issue, which is the training of the Judiciary following this and making sure its members are absolutely conversant with the person-centred model and the interpretation of capacity, particularly when we are keeping a functional capacity test. The Judiciary must be sensitised and there must be cultural change. I know in the context of other situations there has been a lot of training of legal professionals. It is incredible and shocking that some of it was needed. The Minister might clarify this. I agree that we need it to be transparent.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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I take Senator Seery Kearney's points. In the first instance, this legislation will necessitate significant engagement of the Judiciary, primarily because a significant panel of judges will be involved in moving people from wardship to the new DSS. This will take a significant amount of work. There has already been some engagement with the courts on preparing for this. It is not for the Executive to direct the Judiciary on issues of policy. The training of the Judiciary is a matter for the Judicial Council. There is an understanding that the Bill is significant in terms of bringing about the removal of an entire system from the Judiciary. The ward of court system has been entrenched in Irish and British courts since the Victorian era. There is an understanding that real change is needed.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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It is not for us to tell the Judiciary what to do, but when something has been so entrenched for decades it means there is a system of thinking that goes with it and it is reasonable that we comment.

Amendment agreed to.

Government amendment No. 18:

Amendment agreed to.

Section 30, as amended, agreed to.

SECTION 31

Photo of Tom ClonanTom Clonan (Independent)
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I move amendment No. 19:

In page 26, between lines 10 and 11, to insert the following: “(8B) Directions regarding the investment strategy to be followed by the decision-making representative in respect of assets owned by the relevant person.”.”.

There is a requirement for directions regarding the investment strategy to be followed by the decision-making representative in respect of assets owned by the relevant person. This is to address an important issue relating to people who require the assistance of the powers conferred by this legislation. For example, at present the wards of court office is responsible for more than €2 billion in funds owned by wards of court. One ward owns assets of approximately €72 million. With such large sums, it is essential that there is an independent and objective mechanism for ensuring that such funds and assets are invested appropriately by any decision-making representative. There is a requirement for the court to supervise such investments to help protect the assets. This will also give protection to the decision-making representative and thus reduce the concern of wider family members. It is to give that extra support to the decision-making representative who in many cases may not have the skill set to oversee, manage and direct such large sums and assets.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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I support anything that will put in place a mechanism to ensure the investment and remote direction of any moneys belonging to a ward of court or given to a ward of court, awarded following instances of negligence that appallingly are all too often reported in the news. The idea that a person is given an award and that would be dissipated or lost, as has happened and as we have seen reported, is outrageous and appalling. There is a small cohort of people who deserve a mechanism to reimburse them for the money that was recklessly lost, leaving them with elderly parents trying to cover where they should have financial support. I have spoken on this previously. The Justice for Wards group represents the people whose money has been lost and who have been left without protections by the State or any redress. I support putting in place transparency, accountability or insurance, whatever we call it. It is essential that we do it. I take the opportunity to speak on behalf of the Justice for Wards group, which needs to be engaged with. The State needs to do something about the horrific position in which these people find themselves through no fault of their own.

Photo of Rónán MullenRónán Mullen (Independent)
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I am in full agreement and I commend Senator Clonan on bringing forward the amendment. I agree with everything that Senator Seery Kearney said as well. I came to know of a particular case a number of years ago where a large award was made. The retired President of the High Court, Mr. Justice Kelly, addressed people at the end of the case. He said to them that this was a very large sum but what they had to remember was that this had to last them for their whole lives. I remember thinking that he was being somewhat avuncular in a sense in reminding all parties that this would need to be managed with great care. Of course, that applies a fortiori where the person in receipt of the award is a ward or a person who is depending on the good stewardship of another. This is a welcome and important amendment and I look forward to hearing what the Minister has to say on it.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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The Senators have spoken to a wider problem that has emerged in the existing wardship system. I recognise the genuine and legitimate concerns they are raising. I understand the intention of the amendment for the reasons I am about to set out. I do not believe is not necessary because we have provision in the legislation that addresses much of what Senator Clonan said. Section 38(5) and 38(6) of the 2015 Act set out criteria for the appointment of decision-making representatives. Section 38 (5) states:

When considering the suitability of a person to be a decision-making representative for a relevant person, the court shall have regard to the following: (a) the known will and preferences of the relevant person;

(b) the desirability of preserving existing relationships within the family of the relevant person;

(c) the relationship (if any) between the relevant person and the proposed representative;

(d) the compatibility of the proposed representative and the relevant person;

(e) whether the proposed representative will be able to perform the functions to be vested in him or her;

(f) any conflict of interest.

Paragraph (e) is important in ensuring there is an assessment of the ability of the decision supporter to meet the needs of the particular relevant person. If the particular relevant person has any sort of estate that needs management, the ability of the decision supporter to meet those needs would be considered. There is more detail in section 38(6) which states:

Where the court appoints a decision-making representative to make decisions on the relevant person’s property and affairs, it shall have regard to the following: (a) the size, nature and complexity of the relevant person’s financial affairs;

(b) any professional expertise, qualification or experience required to manage the relevant person’s financial affairs;

(c) the capability of the proposed representative to manage the relevant person’s property and affairs;

(d) the financial expertise and support available to the proposed representative.

That covers and addresses, maybe in slightly different language, the important point the Senator set out.

Decision supporters would be subject to the oversight of the DSS. They have to report to the service on their management of financial assets.

Another important point in this legislation is that the decision supporter is there to assist the relevant person. If the relevant person, having been recognised as having capacity, makes bad decisions, he or she is entitled to under this legislation. That is an important issue. We are moving away from the situation where the court, through the ward of court system, knows best. The relevant person's capacity is recognised, including his or her capacity to make a bad decision. That is relevant because it is no longer a question of the decision supporter minding the relevant person's money; it is a question of the decision supporter supporting the relevant person to make the decisions that he or she believes are best even if those are decisions that he or she considers not to be financially the best investment. It is important to recognise that.

Photo of Rónán MullenRónán Mullen (Independent)
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I thank the Minister for his reply. I would be grateful if I could tease this out with him. I defer to his knowledge of the Bill as he has been with it for a long time. The amendment specifically goes to an area where a person is making decisions on behalf of another person as a decision-making representative. Is that at the higher level of intervention and support where person A is entrusted with a decision on behalf of person B? The Minister is bringing the legislation through the Houses. Regarding the final point he made, while I understand the spirit underlying it, this is about releasing people to exercise their wishes in every situation and to support them to the extent they need to be supported having regard to a particular issue where they may lack capacity to some degree or at a particular time or in a situation in which they lack capacity. However, there are circumstances where person A makes the decision on behalf of, and for the benefit of, person B.I think that is what Senator Clonan's amendment addresses.

The second question I had, albeit the first that came to mind, was whether it would be fair to characterise the Minister's opposition to this amendment as follows. He is pointing to the provisions in the law which go to the assessment as to who is to be entrusted with this decision-making and decision support capacity. He is standing back from imposing a requirement in the law that directions in respect of the decisions that must be taken are given. Is that the nub of this? The Minister rightly points to the testing and the required qualifications of the person who will be entrusted with this decision support, but Senator Clonan's amendment asks for more because it asks for the giving of directions in respect of the investment strategy. I do not wish to speak for Senator Clonan, but that seems to me to be a different issue. Is the Minister making a policy choice to stand back from going to that extent in the way proposed in this amendment?

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Does the Minister wish to respond to that before I move on to Senator Clonan?

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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I will let Senator Clonan come in first.

Photo of Tom ClonanTom Clonan (Independent)
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In the context of Senator Mullen's comments, what I heard the Minister say was that the concerns I have raised in proposing this amendment are already dealt with elsewhere. I ask and would press, however, that they be explicitly dealt with in this legislation because this legislation will have a seismic impact on all sorts of areas, from mental health and involuntary detentions to looking after people's assets and funds and the administration of funds. We have an opportunity at this point, and perhaps later on Report Stage, to make sure we get this right as opposed to relying on other understandings as to the nature of who is appointed and the ideal criteria or characteristics. I think we have an opportunity to address the matter here explicitly and to get it right in the actual wording now.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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I accept that the Minister is just making a point but, for clarification, we should not confuse the two. Yes, it is very important an individual is entitled to make whatever decisions he or she wishes to make and that he or she should be supported in making those decisions. There is an enormous difference between someone making an imprudent decision for themselves and an imprudent decision being made by another person who is entrusted with decision-making and the individual having to live with the consequences of that for the rest of his or her life, along with his or her whole family, which is the case in current circumstances. To ensure we have that absolutely tight and robust, perhaps we will require engagement before Report Stage. To date, where sheer recklessness and negligence have occurred, there have been no consequences. There has been just a moving on to a different system, and those who are left behind are left behind and that is it. That is not right, and I will continue to speak up on those people's behalf because it is necessary. While we are designing a new system, it is important it is absolutely transparent that when decisions are being made on behalf of another individual, there is accountability and redress where the decision is wrong.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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It was probably not helpful of me to have made a general point on that issue in the context of quite a specific thing, so I accept what Senators Seery Kearney and Mullen say about the general point about a changing approach versus this specific situation.

As for this specific situation, and from my read of the amendment and where it is proposed to locate it, it seems to bring the court into giving directions on a very specific element of what the decision-making representative is undertaking. I think Senator Mullen is correct that the concept behind the legislation is that the decision-making representatives, having met the criteria they have set out, are qualified people and it is not necessary again for the court to start specifying to them the types of strategies that will be taking place in the decision-making representation order. It works on the basis that, having met the criteria, they will be able to undertake that. There is obviously oversight of the process, and if a decision-making representative breaches that, there are offences provided for under the legislation as well.

The matter can be discussed further, but I am reasonably confident the provision as set out in respect of the detail that is required of a decision-making representative before he or she is appointed is comprehensive and encapsulates the ability to manage financial matters or an investment strategy, as was suggested. I do not feel the court needs to be more specific in the directions it makes because I think that gets the court involved at maybe a very granular level on every single situation, which I do not think is the desired outcome.

Amendment put and declared lost.

Section 31 agreed to.

Sections 32 to 34, inclusive, agreed to.

SECTION 35

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Amendments Nos. 20 to 22, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Government amendment No. 20:

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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Amendments Nos. 20 to 22, inclusive, extend the capping of decision-making representative fees to all decision-making representative arrangements under Part 5 of the principal Act. Previous amendments provided for the capping of panel members' decision-making representative fees. This amendment will ensure limits are imposed in respect of all decision-making representative fees. Regulations may be prescribed to set the limit of fees to be charged, and these will be drafted to ensure a proper balance between fair and reasonable rates of remuneration and the interest of the relevant person's estate. In the majority of cases, decision-making representatives will not be remunerated for their work as the Act foresees a close and personal relationship as a condition of appointment. However, where circumstances require and where it is the express wish of a relevant person, fees are payable and will be met from the assets of the relevant person. In such circumstances it is vitally important to set limits and to safeguard these assets. I understand there may be particular circumstances where these limits may need to be exceeded, and the amending provisions allow that this can occur but only when authorised by the decision support service.

Amendment agreed to.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Before moving on, I welcome Senator Ó Donnghaile's guests to the Distinguished Visitors Gallery.

Government amendment No. 21:

Amendment agreed to.

Government amendment No. 22:

Amendment agreed to.

Section 35, as amended, agreed to.

Sections 36 to 39, inclusive, agreed to.

SECTION 40

Government amendment No. 23:

Amendment agreed to.

Government amendment No. 24:

Amendment agreed to.

Government amendment No. 25:

Amendment agreed to.

Government amendment No. 26:

Amendment agreed to.

Government amendment No. 27:

Amendment agreed to.

Section 40, as amended, agreed to.

Sections 41 to 46, inclusive, agreed to.

SECTION 47

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Amendments Nos. 28 to 30, inclusive, and 36 to 38, inclusive, are related and may be discussed together.

Government amendment No. 28:

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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These amendments provide that enduring powers of attorney executed under the Powers of Attorney Act 1996 may continue to be registered under the 1996 Act or the 2015 Act where what I refer to as a transitional wardship application has been made. This refers to a scenario in which a person has been the subject of a wardship application at the time of commencement of the 2015 Act and that application is unresolved. I moved amendments in the Dáil to account for this transitional cohort and ensure continuity of care. These amendments provide that a person's transitional wardship application may be processed to completion, whereby the process for subsequently exiting wardship would apply.

The amendments also provide that where a decision supporter of the appropriate tier is appointed, an incomplete wardship application must be withdrawn and that nothing will prevent a person who is the subject of a wardship application from making an application for a decision supporter to be appointed. These amendments clarify the appropriate tier of decision supporters that would cause a wardship application to be withdrawn.

Amendment agreed to.

Government amendment No. 29:

Amendment agreed to.

Government amendment No. 30:

Amendment agreed to.

Section 47, as amended, agreed to.

Sections 48 to 50, inclusive, agreed to.

SECTION 51

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Amendments Nos. 31 and 32 are related and may be discussed together.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I move amendment No. 31:

In page 38, to delete lines 12 to 21.

Section 46 of the Bill amends section 59 of the 2015 Act to remove the option to grant powers to consent or refuse health treatment from an enduring power of attorney. This means individuals who wish to confer powers to consent or refuse health treatment on a trusted supporter at a time when they are not able to communicate their wishes will have to complete a separate advance healthcare directive even if they are also making an enduring power of attorney. This places an additional bureaucratic burden on the relevant person if they are required to draft two separate instruments with different requirements as to supporting evidence, witnessing and so on. It would be especially burdensome if the relevant person wishes to authorise the same person who holds the enduring power of attorney as his or her designated healthcare representative to consent or refuse treatment on his or her behalf in accordance with his or her will and preference. It is inconsistent with the approach in the rest of the Act to exclude healthcare treatment from enduring powers of attorney when decisions about healthcare treatment can be included in any other decision support arrangement under the Act, including decision-making assistance agreements and co-decision-making agreements. It is also inconsistent with recommendation No. 52 of the Joint Oireachtas Committee on Children, Equality, Disability, Integration and Youth in its pre-legislative scrutiny that health and medical treatment decisions be retained in the scope of an enduring power of attorney.

Amendment No 31 would restore the original power the Bill proposes to remove from individuals making enduring powers of attorney. The removal of this power is unnecessary for the Minister's stated purpose of giving clarity to healthcare professionals as to who has the authority to make a healthcare decision where a person lacks capacity. Sections 12 and 21 of the principal Act clarify that where a person makes a decision-making assistance agreement or co-decision-making agreement that relates to healthcare, such an agreement will be null and void in respect of decisions also covered in an advance healthcare directive if that directive enters into force because the person has lost capacity. Therefore, it is already foreseen in the principal Act that in situations where one or more decision makers may have authority, for example, in respect of powers to consent or refuse health treatment, the advance healthcare directive and designated healthcare representative take precedence over other instruments. This provides the necessary certainty to healthcare professionals as to what instrument to follow in this situation. In addition, this provision will ensure healthcare professionals will not have to check whether any elements of the 2015 Act are engaged beyond an advance healthcare directive before providing treatment, as others appointed under the Act may have health decision-making powers.

Therefore, there is no need to remove the option of individual choice from donors of enduring powers of attorney, who should be able to continue to confer these powers in their enduring power of attorney should they wish to do so, rather than imposing a bureaucratic burden of creating a separate legal instrument with separate witnessing and notification requirements to give effect to their choice.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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This issue was discussed at some length in the Dáil. There are two different perspectives on it. While I understand, as a result of that discussion, the rationale for the amendment, the provisions the amendment seeks to delete are important, in my view, from the perspective of legal clarity. The 2015 Act was reviewed in detail in the process of preparing the amendment Bill. Legal experts reviewed these provisions on behalf of the HSE and it was found there is a risk to a relevant person if two decision supporters have equal rights in terms of treatment decisions at a moment of crisis. If an attorney were to agree to a treatment decision while a designated healthcare representative made the opposite decision, whose view would prevail? It is possible this would lead to legal cases in situations where the decision supporters are in conflict as to the decision.

In terms of legal clarity, the provisions in question make clear to medical professionals and clinicians that in the context of advance planning, a designated healthcare representative and the text of an advance healthcare directive are the definitive support and statement concerning a person's treatment decisions. This clarity is necessary for the provision of healthcare in line with the person's will and preference, especially where swift decisions may need to be made. In addition, the provisions have regard to the specification in Part 8 of the Act of a series of safeguards and protections as to how a person's treatment preferences are to be complied with, including in certain difficult ethical or medical scenarios. These provisions are absent from the sections on enduring powers of attorney. It is preferable to provide clarity that an advance healthcare directive is the appropriate instrument for advance planning in a healthcare context. For that reason, I am not in a position to accept the amendment.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Does Senator Warfield wish to respond?

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I understand Senator Clonan would like to comment on amendment No. 32.

Photo of Tom ClonanTom Clonan (Independent)
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I refer to amendment No. 32 to section 51, which is based on section 59(5) of the principal Act. Before I mention the proposed insertion, subsections (5A) and (5B) are explicit in that they prescribe that the power of attorney does not have any role in terms of consenting to or refusing treatment for the donor, that a donor shall not, in an enduring power of attorney, even purport to give that power, and that any provision of a power of attorney relating to such purported power shall be null and void. It is very restrictive. It means that treatment decisions can only be provided for in an advance healthcare directive. The insertion I propose is that, notwithstanding the provisions of subsections (5A) and (5B), the donor may authorise the attorney to consent to or refuse treatment for the donor where a solicitor certifies that the donor has received independent advice and sincerely and specifically wants to include this provision within the scope of the enduring power of attorney. In April last, the Joint Committee on Children, Equality, Disability, Integration and Youth recommended that health and medical treatment decisions be retained in the scope of an enduring power of attorney.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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My response is similar to the points I made in response to Senator Warfield. When the 2015 Act was being reviewed there was a real concern, particularly on the part of the HSE, about who would have the power to make the final healthcare decisions in the event of a conflict arising. Notwithstanding the Senator's effort to address that through having a solicitor certify something, the real concern and motivating factor behind the change we made is the risk that two contrary views may arise when life-and-death decisions have to be made in a serious healthcare situation. In light of that, it is important that the law is clear that one view shall prevail, and that should be set out in the legislation. That is the position we wish to advance.

Photo of Rónán MullenRónán Mullen (Independent)
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This is another amendment that I am happy to support.

I listened to the Minister's response and there is a certain logic in it because the last thing one would want to see is some kind of a conflict between the contents of an advance healthcare directive and the contents of an enduring power-of-attorney arrangement.

One of the concerns would be that the EPA is something that is very well established. Many EPAs are not in the end required to be activated but if, as is the case at the moment, very few people execute an advance healthcare directive and many more people execute enduring power-of-attorney arrangements, would it not be better to have a provision in law that, where there is a conflict, the advance healthcare directive would prevail? If what we are trying to do here is to facilitate the activation and actions in accordance with people's wishes expressed in advance, and if one has an existing arrangement where all sorts of other decisions are entrusted to a person or persons who may in the fullness of time execute, carry through or activate an enduring power of attorney, should it not be the case that people are facilitated rather than required to go down a certain track? If a person has to execute an advance healthcare directive as well as a will and the enduring power of attorney, is it possible that people will opt not to do that because of the time, trouble and expense that could entail? I ask that question sincerely.

As with a previous amendment, these ideas have not come out of the sky. The joint committee recommended that health and medical treatment decisions be retained in the scope of an EPA. I wonder if there is a way to have a "both-and" provision rather than an "either-or" one, particularly given that we could provide for the advance healthcare directive taking priority in the event of any possible conflict of direction.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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I understand where Senator Mullen is coming from but we are trying not to have an "either-or" scenario. We are trying to ensure there is no question that where medical practitioners face critical situations and have put before them an EPA and an advance healthcare directive, they will know the legislation is moving away from that situation and only one document will guide medical practitioners in terms of having clear knowledge of what medical decisions are to be made.

It is important to note that the advance healthcare directive is designed specifically to give the key pieces of information. That is what it is centrally about. The EPA is not as specific on healthcare issues and is not designed to give the degree of specificity to a healthcare practitioner that an advance healthcare directive is designed to give.

The Senator may be correct that the EPA is a better known document but once this legislation is passed, the advance healthcare directive will become better known and understood and the fact that it is better designed to respond and provide the relevant information in these crisis situations will be recognised.

Photo of Rónán MullenRónán Mullen (Independent)
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I am not a member of the joint committee and others Senators will have engaged with this matter much more than I have. I wonder about it at a human level, however, because I imagine there are people who would rather not have to get into all the specifics. I certainly know of families where a person is quite clear who he or she would want to make the necessary decisions for him or her when those decisions have to be made. I wonder whether sufficient account is being taken of that human dimension where people would rather leave the nod to a certain person, for example, an enduring power of attorney, and would be left the freedom to do that. Has consideration been given to the merit of that argument, in other words, where a person does not want to get into the specifics of an AHD requirement but would like to entrust the future decisions to a person by way of the enduring power of attorney?

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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Senator Mullen is correct that the EPA gives much wider latitude in terms of those decisions. The concern at play here is that, for the healthcare practitioner, that degree of specificity is really important and that is provided for through the mechanism of the advance healthcare directive. The preference is that the advance healthcare directive is used because, rather than, as the Senator colloquially put it, giving the nod to the EPA in terms of the decision to be made, there probably needs to be greater specificity for the healthcare practitioner in the particular circumstance. That is why the legislation is designed to recognise the preferability of using an advance healthcare directive in these circumstances.

Amendment, by leave, withdrawn.

Photo of Tom ClonanTom Clonan (Independent)
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I move amendment No. 32:

In page 38, between lines 21 and 22, to insert the following: "(5C) Notwithstanding the provision of subsection (5A) and (5B) the donor may authorise the attorney to consent to or refuse treatment for the donor where a solicitor certifies that the donor has received independent legal advice and sincerely and specifically wants to include this provision in the enduring power of attorney.".".

Amendment, by leave, withdrawn.

Question proposed: "That section 51 stand part of the Bill."

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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We need to refer back to our discussions earlier today regarding the engagement that will happen before Report Stage in the context of enduring power of attorney and the mental health effect of the competition, so to speak, between those two powers, or those two documents and preferences that are put forward. We need to come back to this on Report Stage and make sure that the recommendations of the committee have been fully satisfied, particularly in the context of mental health. I reserve the right to give more consideration to that in taking on the point made by Senator Mullen and in the context of our discussion earlier today. I wish to address that on Report Stage.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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The Minister concurs.

Question put and agreed to.

Sections 52 to 55, inclusive, agreed to.

SECTION 56

Question proposed: "That section 56 stand part of the Bill."

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Senator Clonan has indicated opposition to the section.

Photo of Tom ClonanTom Clonan (Independent)
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We are asking that the introduction of a two-step mechanism to register enduring powers of attorney be set aside. We so request because requiring the registration of an EPA after execution will create additional legal work and costs, etc. Those additional costs might deter people from taking that step and that would not be in the public interest. It is estimated that 80% of EPAs in the UK never have to be triggered or registered because the vast majority of donors do not lose capacity in their lifetime. I am assuming, based on the representations that have been made to me by legal practitioners, that a similar situation would pertain here in the Republic and, therefore, registration after execution of the EPA at that stage would prove totally unnecessary in the vast majority of cases, thus creating an additional and unnecessary administrative and cost burden.

In April, the Joint Committee on Children, Equality, Disability, Integration and Youth recommended the removal of this two-step process for registering an EPA. In its report on EPAs, the Law Reform Commission recommended that an enduring power of attorney should only be registered once donors have lost capacity to make essential decisions for themselves, and that there is no requirement to register them just after execution. One of the reasons for registering an EPA after execution was to have any errors regarding EPA documentation rectified while the donor could assist. However, this is no longer relevant because of the provisions in section 57(b) of the Bill.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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The reason behind the change being made here was to give the relevant person more autonomy. The new role for registration with the DSS rather than with the court will be less costly and should be easier to process than is the case under the current system. The two-stage nature means that for as long as the relevant person has capacity, he or she is in a position to influence or change the various elements around it. We see that as a positive step, rather than having them locked into a process from early on. That is the basis for the approach being taken. It is to better to allow the will and preference of the relevant person to influence what is happening for as long as he or she is in a position to so do, but also in terms of making the process less costly. That is how we envisage the revised system. I accept that the Senator may disagree but certainly our sense is that this is an improvement and a step forward rather than a step back.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Senator Clonan may maintain his opposition to the section if he so wishes.

Photo of Tom ClonanTom Clonan (Independent)
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I thank the Minister. We will agree to disagree. I hear the logic in what he says, however, in terms of the context in which he made this decision.

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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I thank Senator Clonan, who is being totally reasonable, as always.

Question put and agreed to.

Sections 57 to 64, inclusive, agreed to.

SECTION 65

Government amendment No. 33:

Amendment agreed to.

Government amendment No. 34:

Amendment agreed to.

Government amendment No. 35:

Amendment agreed to.

Government amendment No. 36:

Amendment agreed to.

Government amendment No. 37:

Amendment agreed to.

Section 65, as amended, agreed to.

Sections 66 to 70, inclusive, agreed to.

SECTION 71

Government amendment No. 38:

Amendment agreed to.

Section 71, as amended, agreed to.

Section 72 agreed to.

NEW SECTIONS

Government amendment No. 39:

Photo of Joe O'ReillyJoe O'Reilly (Fine Gael)
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Amendments Nos. 39 and 40 are related and may be discussed together, by agreement. Is that agreed by the House? Agreed. I invite the Minister to speak to the grouping.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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Amendment No. 39, along with some technical amendments, provides for additional provisions in respect of the maintaining of a register of AHDs by the decision support service. My colleague, the Minister for Health, will have a regulation-making power to establish and maintain a register of AHDs which will be subject to new provisions provided by this amendment. The provisions specify what the content, principles and policies of the regulation should be and will better align the register of AHDs under Part 8 of the Act with the register of other decision support arrangements under other Parts of the 2015 Act.

I am not in a position to accept amendment No. 40. It deals with an issue on which there has been significant engagement, like the issue of the applicability of AHDs that we discussed. As with other amendments to Part 8 of the 2015 Act, this is a matter that is the responsibility of the Minister for Health, although my Department and the Minister, Deputy Stephen Donnelly, have been in close contact with regard to this issue in the preparation of the Bill. The amendment seeks to allow minors who have reached the age of 16 to make a valid AHD.This Bill, including its tiers of support, and the 2015 Act were not originally designed to apply to minors. The Bill was designed to apply to adults. That reflects the reality that parents and guardians have specific legal responsibilities in respect of minors. Such guardianship provisions do not apply for those over the age of 18. In the context of certain healthcare decisions, I am aware 16- and 17-year-olds have the ability to consent to surgical, medical and dental treatment. As the Minister with responsibility for children and youth, I recognise minors have agency and I work to foster and support that agency in other areas of my brief. In this instance, however, existing family law architecture must be considered before any amendments can be made.

We have engaged extensively with the Departments of Health and Justice on this issue. I asked both Departments to examine this in the context of discussion we had in the Dáil. I have been advised that this issue, particularly, the issue of allowing young people at the ages of 16 and 17 to refuse consent to various treatments, especially significant treatments, would require a more detailed examination than can be provided for at this stage. There are wider implications and potential, unintended consequences regarding the wider legal position of the rights of minors and guardians. Therefore, I am not in a position to accept the amendment on this occasion.

Photo of Frances BlackFrances Black (Independent)
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I am disappointed the Minister will not accept the amendment. The age of medical consent is 16, except in respect of mental health treatment. Sixteen and 17-year-olds cannot refuse consent for hospitalisation, electroconvulsive therapy, or any other form of psychiatric treatment. This is clearly discordant and discriminatory. I really do believe that. I am Chair of the Oireachtas Sub-Committee on Mental Health, and we constantly hear about the need for parity between mental health and other health spheres. It is important we work together.

I do not deny that consent is a difficult issue. It gives people the freedom to make decisions we may find alarming or nonsensical, but the reality is it is their decision to make. A 16-year-old can refuse life-saving vaccines or blood transfusions, but under the proposed legal regime for decision support, 16- or 17-year-olds who, with the support of their family, doctor or other trusted adviser, make an advanced healthcare directive when they are well in preparation for the potential of being unwell and unable to give or refuse consent will have their wishes disregarded. This is totally unacceptable.

When Ireland decriminalised homosexuality in 1993, some Oireachtas Members mooted a differential age of consent for gay people, such as that which existed in Britain. This is an example that was rightly rejected as discriminatory. Have we not learned from that lesson? A young person experiencing a medical need should not be disadvantaged or disregarded just because their illness is mental rather than physical.

Part 8 of the mental health (amendment) Bill is set to provide for 16- and 17-year-olds to give or withdraw consent to treatment in mental health services if they are deemed to have capacity. The heads of that Bill state that the Assisted Decision-Making (Capacity) Act 2015 would apply for the purposes of conducting the necessary capacity assessments. However, the Act does not provide for decision supports for under-18s. The omission of 16- and 17-year-olds from decision-making rights is contrary to our obligations under the UN Convention on the Rights of the Child. Ireland will go before the UN Committee on the Rights of the Child in January 2023 and has committed to addressing these issues prior to that examination.

I hear what the Minister is saying and I expect to be told the issues I have raised today will be resolved, possibly in the new mental health Act. The people directly impacted by these issues cannot be told to continue waiting. We cannot reinscribe inequalities and injustices in new legislation as we wait to fix problems in foundational legislation. To fulfil the Government's promises on a progressive human-rights orientated approach to mental health, we must ensure the mental health and decision support legislation are aligned to include 16- and 17-year-olds. I hope the Minister will reconsider this amendment. I would love to have a discussion with him about this amendment again. I hope he does not close the door on it today. I would like him to reconsider it and be open to having that discussion.

Photo of Lynn RuaneLynn Ruane (Independent)
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I welcome the Minister back to the Chamber. I will speak briefly on this only because I have been reminded of the importance of being able to give consent at 16 years in respect of mental health issues. I recently supported a woman whose child was diagnosed as being on the autism spectrum and had generalised anxiety. It reminded me of a similar case I came across years ago when I was in the addiction sector because the situations were similar.

Sometimes giving the child consent does not only empower the person. There are family situations where separated or divorced parents both share guardianship. Sometimes that guardianship is used as a form of control, but yet there is not actual direct relationship with the child or no parenting of the child financially, emotionally or educationally. When it comes to giving consent for treatment, be it for anxiety, attention deficit hyperactivity disorder, ADHD, or several different things, if the 16-year-old does not have the ability to give consent, the consent is sought from the absent parent. That absent parent often refuses to give consent even though they do not have primary carer responsibility for the child. It reminded me of a recent situation whereby a mother had to go back to the courts system to argue the point about dispensing with guardianship to be able to get her child to go on the medication they need.

Although there is an argument for the empowerment of a 16-year-old in consent and decision-making, there are many more complex situations in which the consent of a 16-year-old is necessary because the sharing of guardianship in separation cases causes further issues for the child in accessing the care he or she needs. The amendment would go some way to ensuring children who need the most support get it and that they would have the ability to give consent in respect of their care.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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The central issue is that the law is not clear in terms of the ability of 16- and 17-year-olds to overrule their legal guardians. That is an unclear part of our law in regard to a wide range of areas. The issue is wider than what we are considering in this Chamber. Senator Ruane alluded to the many complex situations in which this arises. I have my own view about where the balance should be, but it is not one that is fully established. Therefore, in the context of this legislation we are not in a position to make a firm or final determination on the view of a 16- or 17-year-old in the context of an AHD they made, when there is disagreement with the parent or guardian, given the question across the wider sweep of guardianship law is still unclear.

We engaged with the Departments of Health and Justice on this to see if it could be written into this legislation that 16- and 17-year-olds would be able to rely on advanced healthcare directives, but because the wider issue has not been resolved, we will not be able to resolve it in the context of this one piece of legislation. I accept the legitimate arguments brought forward. There are constitutional issues. Constitutionally, someone under the age of 18 years is a child and there are issues in terms of the rights of parents towards their children.We have come a long way in terms of the autonomy we extend to young people but there are still some central issues that this legislation is not going to be able to resolve on its own. Unfortunately I am not going to be in a position to accept these amendments.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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Why is there constitutional difficulty if we are told all the time that physical healthcare decisions can be made by 16- and 17-year-olds without consent?

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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From my officials' engagement with the Department of Justice, I think there are ad hocsituations in which individual types of healthcare, dental practice and so on allow for the consent to treatment but there is no clear legal right for a 16- or 17-year-old to refuse treatment in a situation where that is contrary to the view of a parent or guardian. That is the central issue here.

Amendment agreed to.

Photo of Frances BlackFrances Black (Independent)
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I move amendment No. 40:

In page 61, between lines 3 and 4, to insert the following:

“Amendment of section 84 of Principal Act 73.Section 84 of the Principal Act is amended by the substitution of the following subsection for subsection (1):
“(1) A person who has obtained the age of 16 and who has capacity may make an advance health care directive.”.”.

Amendment, by leave, withdrawn.

Photo of Mark DalyMark Daly (Fianna Fail)
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Amendment No. 41 is out of order.

Amendment No. 41 not moved.

SECTION 73

Government amendment No. 42:

Amendment agreed to.

Photo of Mark DalyMark Daly (Fianna Fail)
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Since amendment No. 42 is agreed to, amendment No. 43 cannot be moved.

Amendment No. 43 not moved.

Photo of Regina DohertyRegina Doherty (Fine Gael)
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I move amendment No. 44:

In page 61, between lines 7 and 8, to insert the following: “(c) by the insertion of the following subsection after subsection (7):
“(8) Nothing in this Act shall prevent a Registered Medical Practitioner from exercising clinical judgment in a life-threatening emergency to disregard an Advance Healthcare Directive, where they reasonably believe it should not apply, or that the patient would not wish it to apply, in those particular circumstances.”.”.

Amendment, by leave, withdrawn.

Question proposed: "That section 73, as amended, stand part of the Bill."

Photo of Rónán MullenRónán Mullen (Independent)
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I wish to speak on the section. It will take a few minutes. I am opposing section 73 of the Bill, which amends section 85 of the 2015 Act. That section, as it stands, allows for consideration of the interests of unborn children in a very rare set of circumstances. In summary, the existing section 85(6)(a) provides that where a woman lacks capacity and is pregnant but her AHD does not specifically envisage what should be done if she were pregnant, medical professionals should presume that treatment should be provided or continued if the lack of such treatment would endanger the life of her unborn child. Section 85(6)(b) allows that where a woman lacks capacity and is pregnant, and her AHD states that a specific treatment should be refused even in the event of pregnancy, in those situations an application shall be made to the High Court to seek its determination on whether the refusal of treatment should apply. These provisions have not been commenced in the seven years since they were passed. These provisions were or are a concession to the fact that an unborn child in the womb is a human person and his or her life simply has to be taken into account, at the very least, when decisions are being made in respect of medical care of their mother. Section 73 of the current Bill proposes to remove these elements of section 85 of the 2015 Act.

It may seem in the light of the repeal of the eighth amendment that the logic therefore is that all of these sections that refer to the unborn should be removed. However, that is not the case. I note that in the course of the Dáil debate on the Bill before us, the Minister justified the removal of the references to the unborn from section 85(6) of the 2015 Act on two grounds. First, he referred to the eighth amendment, the former Article 40.3.3° , when he said that section 85(6) as it stands was required by the then constitutional provision. The Minister then said: "As we know, that constitutional provision was wrong." We certainly do not know that it was wrong. Some people believed it to be wrong or undesirable. Others - one in three who voted, I believe - believed that it was right and should be kept. Really these were political, legal, moral and personal judgments. They do not amount to it being an established fact that the eighth amendment was right or wrong. The decision in the referendum, in fact, simply provided that the eighth amendment no longer be in the Constitution and that these matters be left to the Oireachtas to regulate. That is probably widely misunderstood. The fact that the eighth amendment was removed by the referendum and no longer exists in our Constitution or in our law does not actually mean that it was wrong. I think that while the Minister is correct in saying that the provisions he is proposing to delete were required by the presence of the eighth amendment, if that is his view, it certainly does not follow that the removal of the eighth amendment somehow requires that all legal rights held to the unborn must be abolished. It is not sufficiently well realised, perhaps partly because it does not suit the political establishment, and it is certainly not sufficiently well realised by the public, that the Oireachtas retains full latitude to extend the availability of abortion or to restrict it in accordance of its perception of what the common good requires. It is in that light that the Minister's proposed deletion of these sections must be considered.

I have a particular concern. When I looked up the explanatory memorandum to see how it was proposed to explain these sections in the current Bill, removing these provisions from the 2015 Act, of course I found nothing in it, is that not right? All of this arose in the context of the Dáil debate and Dáil proceedings if I am not mistaken. The point is that this is a substantive issue of human welfare and of considerable public sensitivity. It is therefore all the more concerning that something so far-reaching would just be proposed to be removed during the Dáil debate, or indeed that something so far-reaching would be proposed to be enacted during the Dáil debate without there being any significant public consultation at all.

Let us look at what the law requires. Our current law on abortion gives no protection whatsoever to unborn children up to 12 weeks' gestation. That is a matter of considerable regret to me and to many other citizens. It essentially treats them as unpersons or non-persons despite the heartbeat and other features that we consider to be unique to us as living human beings. My point in saying that is not to lament that section of our abortion legislation but to point to the fact that our law gives a degree of protection to children after the first trimester, after 12 weeks. They can only have their lives ended legally in a couple of specific instances such as where there is a health ground under the relevant section of the 2018 legislation, or in the case of what some people call a fatal foetal abnormality, which I prefer to think of as a life-limiting condition. This protection of unborn children from 12 weeks onwards, inadequate though it may be in my eyes and the eyes of many, is not required by the new provisions of Bunreacht na hÉireann, by the removal of the eighth amendment or by the status then of the provisions of the Constitution in light of the eighth amendment's removal.The protection of unborn children from 12 weeks onward, such as it is, inserted in 2018, is a policy choice of the Oireachtas. That leads to the question about whether the deletion of section 85 of the 2015 Act, which the Minister proposes in this legislation, conflicts with the policy stance of the Health (Regulation of Termination of Pregnancy) Act 2018. If unborn children after 12 weeks gestation are given any measure of protection of whatever degree of significance in the context of abortion, how can and why should their interests be completely ignored in the case of the consideration of an advance healthcare directive? That is the core question here.

The Minister gave a second rationale. He invoked the eighth amendment. I hope I have dealt with that reasonably. His second rationale for deleting section 85 was that this amendment had been drafted by Attorney General. The Minister previously stated, "The Office of the Attorney General identified a need for a related amendment to section 89." All of us, regardless of our views on the substantive issues at play here, should be very suspicious anytime any Minister invokes the name of the Attorney General when justifying any decision that is being made. I say that with great respect for the Attorney General but he or she is not accountable to these Houses. It is a convention, as we all know, that the Attorney General’s advice is not published and, therefore, his or her view is essentially whatever the Government says it is and we have to take Ministers at their word. This, of course, has led to a long and troubling practice that began, as it happened, under a Fine Gael-Labour Party coalition a decade ago, whereby the Attorney General’s name gets invoked to stymie debate, whitewash controversial decisions or to kill off proposals on supposed constitutional grounds.

It is not just me who is saying this. Professor David Kenny of Trinity College has written that successive Governments have elevated the Attorney General to being a “one-person Supreme Court”, granting one constitutional office holder a power of veto over all legislation. We all know that the advice of Attorneys General has clearly been used and abused for political reasons. I would not want that to happen here in respect of the reasons given for deleting section 85(6). Why would the Attorney General be involved in the removal of the reference to the unborn in section 85?

Following the abolition of the eighth amendment, the question of what rights unborn children have is a matter for the Oireachtas. We can grant the unborn as many or as few rights as we wish and, therefore, it is incumbent on us to think carefully about any of these measures and what their impacts might be. The abolition of the eighth amendment did not mean that all rights of the unborn must be abolished. It certainly does not require the abolition of the protections for the unborn from the 2015 Act. The removal of the references to the unborn is not a constitutional issue, but a policy choice by the Government. I do not understand why the Attorney General would be invoked in that context.

What is section 85, as it stands, attempting to do? Why is it there? Why was it inserted in legislation as recently as 2015? Why is there that acknowledgement of the unborn child? It was introduced as an amendment on Committee Stage in the Dáil by the then Minister, Kathleen Lynch, of the Labour Party. It was passed unanimously by the committee without debate or a vote. Nobody raised any objection to it on any Stage during its passage through the Dáil. In fact, the only objection raised to it was on Second Stage in the Seanad, where then Senator Bacik, admirable in her consistency in some ways, in her absolute hostility to the notion that any child in the womb would have rights as of law, was the only person to raise an objection to it. Curiously, she did not seek to remove it by way of amendment either on Committee Stage or Report Stage when it was before the Dáil recently.

Section 85, and the concession to the right of the unborn contained in, it passed into law without a single Deputy or Senator voting against it and with just one Senator raising any objection. The argument that it was somehow required by the provisions of the former Article 40.3.3° was not even advanced by the Government of the day. It makes me wonder how it is possible that a provision that was totally uncontroversial just seven years ago is now so objectionable that it ought to be abolished.

What we are talking about here is a presumption. All presumptions, as the Minister knows, may be displaced. However, in the first instance, with regard to the proposed deletion of section 85(6)(a), the AHD is silent on the subject of whether a specific refusal of treatment should apply in the event of pregnancy. It is merely required that it would be a presumption that if the refusal of treatment would have a deleterious effect on the unborn, there should be a presumption that the treatment be provided or continued. As I said, it is often a safeguard in law that something is a presumption in order that it may be displaced if circumstances prove otherwise. I ask Members to bear in mind that there could be very late-term pregnancies and in circumstances where the 2018 legislation gives a considerable measure of protection, according to some people’s reckoning. That was certainly what we were told at the time that the legislation was brought forward in 2018. Why is there to be no consideration at all of the claim to protection of a potentially late-term unborn baby in circumstances where the AHD is silent on the subject of what is to happen in the case of pregnancy?

The second part of it is where there is a specific refusal of treatment to apply, even if the person is pregnant. If a healthcare professional was concerned that the refusal of treatment would have a deleterious effect on the unborn, an application should be made to the High Court to determine whether the refusal of treatment should apply. Section 85(6)(a) is much stronger in the claim it imposes on any right-thinking person. Again, let us imagine a situation where, notwithstanding an AHD that said to refuse treatment even in the case of pregnancy, it is a matter of days before a child could survive and where loved ones hope against hope that the child might be saved. If the specifics of an AHD in those cases were to be invoked, not in contemplation of abortion, but at a different point in the past, it seems that an enormous injustice could take place and an awful lot of family members could be left in a terrible situation of grief. In many ways, when we talk abut such legislation, we need to be very sensitive because there are all sorts of different human dilemmas behind this. We are talking about these things days today in kind of very careful terms where we are addressing issues of law, and that to some extent is right because we do not want to be trotting out the details of people’s tragedies in any kind of glib way but it does not take a huge effort of the imagination to think about the injustice that removal of these two precautionary provisions could lead to. It is a flat order to do or not do anything. There is a presumption in one case and there is an appeal to the court to make a best interest decision, presumably, in the other.

I am concerned by the effect of removing these two provisions, but I am also concerned by what seems like a lack of thought, lack of public debate and the lack of care to the sensitivities of the situation that have gone into this proposal.This proposal does not relate to the eighth amendment. Those sections could have existed, and probably would have existed, if there was never an eighth amendment. Therefore, getting rid of them does not follow at all, as I think I have shown, from the removal of the eighth amendment. It is a question of policy choice and about how one serves the best interests here. It is not the case in the 2018 legislation that children after 12 weeks in the womb are just regarded as having no rights. That is simply not the logic of the 2018 legislation. I ask the Minister to consider this provision again and I will listen with care to his reply.

Progress reported; Committee to sit again.

Cuireadh an Seanad ar fionraí ar 4.31 p.m. agus cuireadh tús leis arís ar 5 p.m.

Sitting suspended at 4.31 p.m. and resumed at 5 p.m.