Joe O'Reilly (Fine Gael)
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I welcome the Minister, Deputy Roderic O'Gorman. The Bill will conclude at 7.30 p.m. if not previously concluded. I call on the Leader to move that the Bill be recommitted in respect of amendment No. 22.

Regina Doherty (Fine Gael)
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I so move.

Joe O'Reilly (Fine Gael)
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Is that agreed? Agreed. For the information of Members, please note that the House, by agreeing to the motion to recommit, allows a committee-style discussion on amendment No. 22 only, that is, Members may speak more than once on the amendment. In respect of other amendments, I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment, who may reply to the discussion on the amendment. Each non-Government amendment must also be seconded. I hope that is helpful. If Members have further questions, we will try to co-operate and make it as easy to communicate and contribute as possible.

Amendments Nos. 1, 13, 14 and 19 are related and may be discussed together by agreement. Is that agreed? Agreed.

Frances Black (Independent)
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I move amendment No. 1:

In page 8, between lines 14 and 15, to insert the following: “(e) section 85(7);”.

Eileen Flynn (Independent)
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I second the amendment.

Frances Black (Independent)
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I welcome the Minister. I have a number of amendments in this group dealing with the issue of the exclusionary invalidation of the advance healthcare directives, AHDs, of some people who have been involuntarily detained. It is such an important issue that impacts people's health, autonomy and dignity. Because time is short, I will try to address all of my remarks on this issue when dealing with this amendment.

It is a deeply complex area of law. I want to highlight the assistance and support I have received from some of the most amazing campaigners working in this area. I want to give huge thanks to Ber Grogan and the team at Mental Health Reform, Fiona Walsh and other members of Recovery Experts by Experience, who so courageously shared their experiences with me, NUI Galway lecturer, Fiona Morrissey, whose work on the AHD is central to my advocacy on this issue, and, of course, Professor Eilionóir Flynn and everyone in the NUIG Centre for Disability Law and Policy. To everyone who has followed the passage of this legislation so closely, I thank them. I want to apologise that, I have no doubt, this Bill is not what they hoped it would be. The legislation provided an opportunity to decisively break from a paternalistic and oppressive mode of wardship and create a system that is truly empowering and human rights-compliant. It does not achieve that, which weighs heavily on me.

AHDs enable a person who experiences mental illness to make plans while they are healthy and, if complied with, it gives them peace of mind, 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 they are respected and upheld, AHDs 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 be subject to involuntary detention.

The legislation, as it stands, mandates compliance with the AHDs made by some people detained under the Mental Health Act but not others. Those admitted under section 3(1)(b) because the clinician believes they will deteriorate, or that they will substantially improve if detained, will have their wishes respected, and those detained under section 3(1)(a) who are deemed to be at risk to themselves or others will have their wishes disregarded. Two-tier approaches to human rights obligations re-inscribe inequality. Mental healthcare can involve shifts in status and in classification. Sometimes these changes happen rapidly. People can go from voluntary to involuntary treatment and their classification as section 3(1)(b) or section 3(1)(b) can be altered.

The Government's partial solution leaves a gaping hole in the system whereby any person with mental illness and an AHD is at risk of it being disregarded.It fundamentally undercuts the dignity and peace of mind that advance healthcare directives are meant to provide. It is causing enormous concern among the campaigners directly impacted by this legislation. Unfortunately, I am yet to hear one good explanation for why this discrimination is being maintained. On Committee Stage, the Minister alluded to interdepartmental negotiations and legal advice as reasons he could not entirely remove the provisions of the legislation which discriminate against people who have been involuntarily detained. He stated that the changes had to be achieved through the reform of the Mental Health Act 2001, which is to happen at an indeterminate point in the future. I respect that this is the course of action the Minister feels he is bound to pursue but the campaigners who are working so hard on this issue deserve a mode detailed explanation. They deserve a solid timeframe for change on which they can rely. The whole saga has been a years long case of hurry up and wait for the people who have ended up in wardship or who have had their advance healthcare directives overruled. It is a delay that has had a bad impact. It is sad that people will have to wait further still. Any distinction between the decision-making rights of people with physical and mental conditions or disabilities is contrary to the United Nations Convention on the Rights of Persons with Disabilities, UNCRPD, and the principal Act is intended to provide the normative framework for legal capacity and decision-making rights in Ireland and to comply with our obligations under the UNCRPD. It is therefore crucial that the existing inequality which is contained in the Act is removed. There is no conflict between accepting this amendment and reform of the Mental Health Act. In fact, clear equality for people with psychosocial disabilities in this Act will assist reform of the Mental Health Act in a manner compatible with our obligations under the UNCRPD. This amendment would remove any equivocation and ensure that the human rights and dignity of involuntarily detained individuals is protected. It would provide clarity and comfort for individuals who need it. I hope the Minister will consider accepting this amendment.

Fintan Warfield (Sinn Fein)
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I feel it is important to again highlight the rushed nature of this legislation. The Minister's rationale for the rushed process was that a constitutional challenge was ongoing. A response to a parliamentary question tabled by my colleague, Deputy Mark Ward, states, "The constitutional challenge was adjourned on the basis that wardship would be abolished in orderly fashion via an Act of the Oireachtas", and that remains the case. Legislation of this magnitude cannot be rushed to accommodate such external consideration.

Several of my colleagues from a range of political backgrounds have now highlighted the shortcomings in this Bill, most notably the fact that, as proposed, it contains discriminatory language and is inconsistent with Ireland's obligations under the UNCRPD. The Minister has been provided with constructive, actionable solutions through numerous contributions and proposed amendments. Unfortunately, most of these amendments were not accepted, which is deeply disappointing. The proposed amendments which I and others previously submitted would have had a significant impact on the rights of disabled people, older people and people with experience of mental health services. With the appropriate amendments accepted, this Bill could address the failures of our legal and healthcare systems' treatment of individuals with disabilities. It could allow for the creation of a much stronger and more effective version of the Bill which would truly uphold the principles of human rights and autonomy. As my colleague, Senator Black, has previously stated, we need to build people up, not codify their exclusion from full participation in society. I urge the Minister in the strongest terms to consider the proposed amendments in this grouping and use this opportunity to create a lasting and positive impact for those who have so often been victimised and discriminated against.

I will also speak to amendment No. 13 specifically, regarding people who have obtained the age of 16.I ask the Minister, in particular, to reconsider his position with regard to this proposed amendment. The Minister has in the past stated that this Bill is designed to apply to adults and is reflective of the reality that parents and guardians have specific legal responsibilities in respect of minors. However, I would draw the Minister's attention to the range of surgical, medical and dental treatments to which 16- and 17-year-olds currently have the ability to consent. It is important to be constantly reminded of the underlying principle that consent does not require that people make the objectively correct decision. It simply requires that they have the capacity to understand the necessary information in that moment and make an informed decision. In layman's terms, those who have capacity are free to make objectively bad decisions.

A young person experiencing a medical need should not be disadvantaged or disregarded on the basis of their illness being mental as opposed to physical. The proposed Bill would codify a situation where a 16-year-old can refuse life-saving vaccines or blood transfusions. However, a peer, with the support of a doctor, family or other trusted advisor, who makes an advance healthcare directive would not have his or her decision respected and given effect. The alternative situation, as we have seen for many decades, is a system where doctors, families and the courts are left to try to assess what they believe is in the best interests of the individual. Such a system leads to often inconsistent and, indeed, delayed treatment that may not honour the expressly stated wishes of the individual. The Minister has previously acknowledged this lacuna in respect of young people's rights and has stated that this issue "would require a more detailed examination than can be provided for at this stage". Given the fundamental nature of the rights addressed in this Bill and the potential lifelong consequences for individuals subject to such decisions, I urge the Minister to afford this Bill the time and scrutiny necessary to undertake such examination.

Mary Seery Kearney (Fine Gael)
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I respectfully disagree with Senator Warfield regarding the rushed nature of this debate. Every week since we began Committee Stage, we have received emails asking when this Bill will be back on the agenda and reminding us of the urgency involved. The most important sections of the 2015 Act were, regrettably, never commenced. There is nothing rushed about the legislation. However, it does contain elements with which we are all uncomfortable and that we wish could be resolved quickly. I am mindful that there is an inherent discrimination within the Bill that I know the Minister has addressed and about which we have had good discussions with him and his officials. There is a cohort of people for whom the advance healthcare directive is going to be not in effect. It is regrettable that we have a situation where people can have capacity put in their advance healthcare directives but that capacity is undermined by other factors at times when they need those wishes to be implemented.

I have heard the Minister all along when he has said that this must be done in tandem with the reform of the Mental Health Act. In recent weeks at the Committee on Disability Matters, various aspects of mental health have been discussed and representatives of Mental Health Reform and others have been before the committee. On each occasion, I have raised the reform of the Mental Health Act and the fact that there is, unfortunately, discrimination within this Bill. At a meeting at one stage, the Minister undertook to write to the Department of Health and find out where it was at. I took away from our most recent interaction that the Minister is sensitive to this aspect to the Bill that cannot be resolved until such time as the primary legislation on mental health has been dealt with.

I was sensitive to and taken by the original telephone calls I had prior to Committee Stage with individuals who spoke about a loss of agency and how horrible it is. They told me how in the making of a complaint thereafter, there is an absolute powerlessness. At the end of the day, there is an inequality of arms when it comes to capacity, perception, recall and everything like that.I can see the role of advanced healthcare directives, AHDs, in that regard.

As we go through the amendments, we will be speaking about the tests that remain within the Bill but there is an inherent discrimination in that element and that will need to be resolved. I hope it will be resolved within the mental health Bill. I urge that we move through this legislation quickly because I am mindful that people are being made wards of court all the time. We desperately need that not to happen any more and to move to the new regime as quickly as possible. Where are we at with all that? Has the Minister heard back from the Department of Health? Does he have any insight in respect of a timeline or where we might be in that regard to help to address the residual discrimination within the Bill?

Erin McGreehan (Fianna Fail)
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Like other Senators, I am anxious to get the Bill through. As Senator Seery Kearney stated, every week, people are being made wards of court. We have to put an end to that desperate system. As has been noted, discrimination is built into the Bill as it stands. That is unfortunate, and it is upsetting for many people. People contacting my office on this matter are upset and afraid. They have an inherent mistrust in the system. They can see this discrimination. The clear lack of uniformity, with some aspects of the Bill going against the UN Convention on the Rights of Persons with Disabilities, UNCRPD, is further ingraining that mistrust of the system. We must be able to trust medical staff and that the system will work for the individual rather than for itself. We must build that care, trust and belief within people with whatever conditions, as well as in the context of AHDs. I am concerned that the Bill is putting fear into people. I know that is the complete opposite of what the Minister wants to do.

I stress that we must have movement on the mental health Bill. We are doing half a job here. It is unfortunate that we are putting this legislation through. It is not where we want it to be. We have wanted this legislation for so long, yet it is not all it needs to be. Discrimination is built into it and we need to work together to ensure discrimination is taken out of the Bill as we move into 2023 and get the new mental health Bill passed. I would love to hear the thoughts of the Minister on how to proof the Bill. It is not proofed for the UNCRPD. If a court of law was going through the articles in that regard, the State would be on the losing side.

Eileen Flynn (Independent)
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It is appalling that there is discriminatory language in a Bill in 2022. Why is legislation that has discriminatory words in it being rushed through? We are not in agreement that the Bill is ideal. It is not listening to disabled people. Why is the Minister seeking to pass it through the House today?

Roderic O'Gorman (Dublin West, Green Party)
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I thank the Senators for their input. I will respond to Senators Flynn and Warfield in respect of the Bill being rushed and things like that. Senator Seery Kearney spoke about that previously. I do not want to start off in defensive mode but it is important to state that we wished to have the Bill passed in June this year. I had set out my intention to move it rapidly through both Houses at that stage.In the context particularly of debates in the Dáil and on Second Stage in this House, it became clear there were significant concerns in respect of a number of areas, especially in the area of AHDs. At that stage, I decided to slow this down a little. Between then and Committee Stage in this House, and now Report Stage, I have spoken with a significant number of Senators regarding their concerns in respect of different parts of the legislation. We have brought in a significant change. It does not resolve all the issues. I have been upfront in that regard and will speak more on the work happening in the Department of Health at the moment.

As regards the suggestions that we are rushing the Bill, as Senator Seery Kearney pointed out, the 2015 Act has not kicked in, seven years after its enactment. Wardship is still in place. Following our previous debate in the House on the Bill, I met with the Mental Health Commission, as had been suggested. It made the same point as many Senators in respect of dissatisfaction about not everybody being covered by AHDs. It made that point clearly but it also made the point that we need to get rid of wardship. As regards delaying the passage of the Bill, the only option I see is to delay it until the mental health Bill is enacted. We will speak more on that process but that Bill being enacted is some time away and that is a time when more people would be put into wardships and more people would miss out on the significant benefits of the decision support service, DSS, and the tiered situation we have put in there. That is why I do not believe it is being rushed. It is now time to take a significant step forward in terms of ending wardship and getting the DSS up and running. I hope I will be able to give an indication in respect of the actions I have taken to try to reduce the number of people who are not able to avail of AHDs, but also in terms of the work being undertaken by the Department of Health.

I will deal with amendments Nos. 1, 14 and 19 first. As I have stated previously in both Houses, the Minister for Health, Deputy Donnelly, and I strongly agree that parity should exist in the operation of AHDs. It is a technically complex issue from legal and public health perspectives. The legal advice I have received is that it is not feasible to advance this issue in the absence of reform of Part 4 of the Mental Health Act 2001. In light of the current work to comprehensively reform that Act, I cannot support the proposed amendment to delete sections 85(7) or 136. The Government has shown a commitment to addressing this issue and the amendments I tabled on Committee Stage demonstrate that. Those amendments will provide access to AHDs for additional cohorts whose treatment is currently regulated by Part 4 of the Mental Health Act 2001 and who were previously excluded from the supports under the 2015 Act. Those amendments represent a significant step towards parity and will allow an AHD to apply in the majority of circumstances in which a person's treatment is regulated by Part 4. That provides for the addition of people treated under section 3(1)(b) of the Mental Health Act. That is the change we made on Committee Stage. This is an important move forward, one that acts as a stepping stone to greater parity for all persons in accessing AHDs. I hope the extension provided will greatly benefit those who may otherwise not have had control of their treatment preferences.

As regards amendment No. 13, I am not in a position to accept it, unfortunately. The 2015 Act was designed and developed with adults in mind and it does not provide decision-making supports for those aged 16 or 17 years. In the main, this is appropriate as minors cannot currently independently make many of the decisions referred to in the Act, particularly in the context, for example, of the management of an estate. As previously stated in this Chamber, I am aware that 16- and 17-year-olds can consent to certain medical and dental treatments and, as Minister for Children, Equality, Disability, Integration and Youth, I recognise the agency young people should have in their everyday lives. However, the legal position on what should occur if a minor and a parent or guardian disagree on treatment options is not one that is yet settled in this jurisdiction. Part 8 of the 2015 Act falls to the Minister for Health, and my Department has engaged with the Department of Health, as well the Department of Justice, which has a legal and legislative responsibility for issues relating to guardianship.We have discussed the wider implications of making amendments on this matter. A body of family law is in existence with regard to the status of minors, including their rights, and the rights of parents and guardians. In this regard, it is necessary to balance both the rights and interests of a minor and his or her guardians in situations. This is a big question. It does not just apply to consent for certain healthcare treatments. It must be applicable everywhere. That is the reason for the view, across Departments, that it was not appropriate for us to take a step on one issue in this matter but to address it within the wider context.

We spoke a great deal about how the work we are doing here links in with the work of the reform of the Mental Health Act 2001. At our last meeting, I committed to writing to the Minister for Health, Deputy Stephen Donnelly, and the Minister of State, Deputy Butler, to receive an update on that. I have an update and I propose to read the whole letter, dated 29 November, into the record because it is valuable and very much speaks to the crux of the issue we are addressing in this amendment.

The letter referred to my letter of 17 October with regard to the review of the Mental Health Acts and the reform of the same in the mental health Bill currently being drafted by the Office of Parliamentary Legal Advisers. The letter referred to my having rightly mentioned the close and ongoing collaboration between officials in both Departments on matters of shared interest in the Assisted Decision-Making (Capacity) Act 2015 and the Assisted Decision-Making (Capacity) (Amendment) Bill 2022, including the establishment and operation of the decision support service, the introduction of advanced healthcare directives and the interface between the Assisted Decision-Making (Capacity) Act and the Mental Health Acts.

The letter goes on to state that sections 85(7) and 136 of the 2015 Act disapply the provisions of the Assisted Decision-Making (Capacity) Act from applying to individuals whose treatment is regulated by Part 4 of the Mental Health Act, namely, those involuntarily detained under that Act subject to an admission or renewal order and individuals detained subjected to the Criminal Law (Insanity) Act 2006. It points out that, as I will be aware, officials in both Departments worked to remedy this exclusion and sought legal advice from the Office of the Attorney General.

The letter goes on to say that given the architecture of the existing Mental Health Acts, concerns were expressed over whether absolute treatment refusals by individuals whose treatment is regulated by Part 4 might undermine the validity of the order detaining them, where treatment is the basis of detention. It states that given those concerns, it was felt sections 85(7) and 136 of the Assisted Decision-Making (Capacity) Act could only be amended to allow individuals detained on the grounds of section 3(1)(b) of the Mental Health Acts to access the provisions of the Assisted Decision-Making (Capacity) Act.

The next paragraph of the letter is especially important in that it states the Department is in full agreement that this compromise is an interim measure until the issue can be addressed more comprehensively in the mental health Bill which will significantly overhaul provisions in Part 4 related to consent to treatment, to bring it into closer alignment with the provisions of the Assisted Decision-Making (Capacity) Act, which will seek to extend the provisions of the Assisted Decision-Making (Capacity) Act to all individuals whose treatment is regulated by Part 4 in a manner which does not undermine the validity of the orders detaining them.

The letter goes on to point out that, as I will be aware, the Government approved and published the general scheme of a Bill to amend the Mental Health Act in July 2021 and that the scheme contains more than 120 heads that, much like many of the provisions of the Assisted Decision-Making (Capacity) Act, deal with complex issues with regard to the right to liberty, good health and the right to autonomy and self-determination and the interplay between these different rights.

The letter states that in January 2022, drafters in the advisory council were assigned to draft a mental health Bill in line with the general scheme and that since then, officials in the Minister of State's Department have been working with their counterparts in the Office of the Attorney General to address outstanding legal issues in the general scheme, especially protection of liberty concerns for the cohort of individuals known as the compliant incapacitated. It states that recent correspondence between the Minister of State's Department and the Office of the Attorney General indicates a solution to this issue may be agreed upon shortly and that the Minister of State's officials have requested a meeting with the parliamentary drafters on the advisory council to plot out the development of the Bill in the coming months with a view to progressing the final draft Bill, as much as possible, during the spring 2023 legislative session.

The letter goes on to say that the Minister of State expects the meeting to take place before the year end and that the Minister of State has engaged with the Chief Whip to ensure this Bill will be deemed priority legislation in the spring session. It also states the Minister of State has asked her officials to continue to engage with counterparts in my Department during the development of the Bill on areas of shared interest, especially on the alignment between the Bill and the Assisted Decision-Making (Capacity) Act, as well as provisions with regard to the care and treatment and children. The Minister of State has asked her officials to keep my officials abreast of progress on drafting of the Bill.

I will reference the Minister of State's statement in that we are in agreement the Bill we seek to pass today represents a compromise. It is an interim measure but the intention, through the reform of the mental health Bill, is to seek to extend the provisions of the Assisted Decision-Making (Capacity) Act to all individuals whose treatment is regulated by Part 4. I stress that the Minister of State has sought and received agreement from the Chief Whip that the mental health reform Bill will be regarded as priority legislation. It will get priority drafting with a view to having it in the spring session, that is, the session following our return after the Christmas break.

I am sorry that was a lengthy contribution but it was worthwhile. The letter gives clear information on the priorities of the Minister of State, the Minister and the Government and the timeline we are working to achieve. We hope to pass the legislation in this session and address the remaining outstanding issues within the mental health Bill.

Joe O'Reilly (Fine Gael)
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Does Senator Black wish to comment?

Frances Black (Independent)
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No.

Joe O'Reilly (Fine Gael)
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That is fine. I thank the Senator for being so constructive. There is no need to say something for the sake of it.

Frances Black (Independent)
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I move amendment No. 2:

In page 9, between lines 11 and 12, 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.”.”.

Eileen Flynn (Independent)
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I second the amendment.

Frances Black (Independent)
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This amendment seeks to place a human rights-based and UNCRPD-compliant definition of "legal capacity" in the legislation. I was disappointed that the Minister refused to accept this amendment on Committee Stage, stating that the Government's position was that the operation of the functional model was uniquely qualified by an explicit respect for person's will and preference throughout the operation of the test. I do not know if there is a bit of a misunderstanding on this. The inclusion of a functional test is fundamentally incompatible with the universal recognition of the legal capacity of a person and the centrality of their will and preferences as required by Article 12 of the UNCRPD. The Minister received a letter from the vice chair of the UN Committee on the Rights of Persons with Disabilities, Jonas Ruskus, urging him to amend this Bill to remove the functional test and clarifying that Ireland will be in violation of Article 12 of the UNCRPD if he does not do so. Ireland will have to answer to the UN committee when it meets in Geneva to consider our first state report. Why is the Minister unwilling to reform this legislation to meet our human rights obligations?

I was also disappointed by the objection to this amendment on Committee Stage. The Minister believed it provided for decision-making assistants to guide the decision of a relevant person. This could also be a bit of a misunderstanding as the proposed amendment imposes no such requirement. It instead obliges decision-making supports to be guided by the best interpretation of the relevant person's will or preferences. The focus is therefore always on the will and preference of the relevant person and in no way guided by the decision-making supporter. The same provision requires that supporters provide a reasonable account of how this interpretation was arrived at, confirming my point. This amendment would help to bring the Bill into line with the spirit of the UNCRPD. I hope the Minister will consider accepting it.

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

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

The proposed provisions imply a test is needed. The proposed amendment provides in subsection 2(b) for the appointment of a person to support the relevant person in exercising legal capacity. Inevitably, the appointment of such a person would involve some form of process that would most likely be based on a set of criteria by which that person's situation was evaluated. Section 3 provides such a set of criteria, putting in place the limited circumstances in which a decision supporter can be appointed with authority to help another person with decisions. While I appreciate the intent of the amendment, examining section 3 in isolation is not helpful in assessing the Act's overall recognition and enabling of legal capacity.

The Senator spoke about the language. I have flagged these points previously but the issues are still present. On a technical level, there is language in the proposed amendment that we cannot accept. It is not appropriate that a decision-making assistant would guide the decision of a relevant person. This could be construed as leading a decision and is beyond the remit of the role, which is to assist a relevant person in their own decision-making. The requirement that the decision be guided by the decision-maker is contained within the amendment. The term "best interpretation" is also not used elsewhere in the 2015 Act. It is problematic and unnecessary, given the application of will and preference set out in the guiding principles section of the Act, section 8, and the superior legal clarity provided by the existing section. For that reason, I am unable to accept the amendment.

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

In page 10, to delete lines 7 to 11.

Fintan Warfield (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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At a procedural level, this amendment has significant implications for the rights of disabled and older people. It was introduced on Report Stage in the Dáil and was not properly discussed, unfortunately, as that debate was guillotined prior to the full reading of all proposed amendments.The Minister's refusal to agree to this amendment on Committee Stage in the Seanad is a little concerning. He explained that his reason for introducing this provision was to clarify the intersection of the inherent jurisdiction of the High Court and the 2015 Act and that it was important to note that these provisions do not create new powers for the High Court. The Minister also suggested that 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. However, he went on to correctly point out that 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. It is a little difficult to understand why the Minister believes this provision is necessary and it is not possible for the inherent jurisdiction of the High Court to be removed or even altered.

On Committee Stage, the Minister stated that part of the purpose of introducing the amendment was to signal that such applications should only be brought when the authority of High Court is very much needed to determine a matter in which a person's liberty might be in question. By seeking to qualify the role of the inherent jurisdiction in decision-making regarding the care, treatment and detention of individuals in the 2015 Act, he might be legitimising the option of seeking orders which circumvent the 2015 Act and allow for substitute decision-making entirely contrary to the stated intentions of the legislation. Removing this provision will not impact on the inherent jurisdiction of the High Court. However, its retention risks embedding a twin track for healthcare decision-making which can override the principles of the 2015 Act.

What is important here is compliance. If the Minister is serious about compliance with the obligations of the UNCRPD, he should accept this amendment.

Roderic O'Gorman (Dublin West, Green Party)
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I thank Senator Black for her amendment. The Senator expressed many of my views on why this is necessary. She is correct that the amendment we brought forward does not create a new power. There is an inherent jurisdiction of the High Court in making decisions but we, in our engagements with the Department of Health, felt it was necessary to signpost to the High Court in order to protect the rights of relevant persons.

Work is ongoing in the Department of Health on delivery of dedicated legislation on protection of liberty safeguards. There may be instances where matters regarding detention and treatment arise. By their nature, these cases will be rare but when they arise, they will be challenging. The provision introduced by me regarding inherent jurisdiction was done on foot of strong legal advice and considerable concern that without an explicit reference to the requirement for the High Court to be the only entity that would sanction a deprivation of liberty, procedural uncertainty that would exist without that clear signposting could put the rights of individuals at risk.

The insertion regarding inherent jurisdiction clarifies that in any question regarding the sanction for a deprivation of liberty, such as where a residential arrangement might be contrary to the will and preference of the relevant person, that decision cannot be sanctioned by a decision supporter and must only be brought before the High Court, and that court's consideration is required to determine the matter in which a person's liberty might be at stake. I believe it is the correct way to ensure this is signposted. As such, I am not in a position to accept the amendment.

Gerry Horkan (Fianna Fail)
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Senator Seery Kearney is next.

Mary Seery Kearney (Fine Gael)
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I would not presume to assert myself on more than one occasion in accordance with this, so I do not need correction on it.

Gerry Horkan (Fianna Fail)
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I have just arrived so I was not sure who had spoken before the Minister.

Mary Seery Kearney (Fine Gael)
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Trusting me would have been a nice instinct in the first instance.

Gerry Horkan (Fianna Fail)
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Of course, and I have done so.

Mary Seery Kearney (Fine Gael)
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I can understand the concerns on this point. I went over and back on this. Maybe it comes from decisions of the High Court. They tend to go on and make statements that sometimes seem irrelevant or unnecessary or involve an additional underscoring of a situation. This feels like it is underscoring the inherent jurisdiction of the High Court. It removes the necessity of interpretation when decisions need to be made urgently and someone's liberty is in question and ensures there is no need for a hearing on the interpretation of the legislative drafters. I contented myself with this section on that basis. It makes for a more expeditious hearing, if one is needed, on the basis that there was no intention of the legislative drafters to ever remove the High Court. It appears to reiterate something that we all know but it is an important point of clarity.

Gerry Horkan (Fianna Fail)
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Amendment Nos. 4 and 5 are related and may be discussed together by agreement.

Frances Black (Independent)
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I move amendment No. 4:

In page 10, after line 39, 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.".".

Fintan Warfield (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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Now that Ireland has ratified the UN Convention on the Rights of Persons with Disabilities embedding an explicit requirement for courts to interpret, they act in a manner that gives effect to the convention and 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 and reaffirms Ireland's commitment to refine and reinterpret our law 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 understanding of human rights law.

On previous Stages, the Minister opposed this amendment on the grounds that, in his opinion, it is insufficiently clear for inclusion in primary legislation and that the UNCRPD sets general principles which must be then translated into more specific obligations. The Minister also objected to the inclusion of reference to "General Comment 1" as it is not drafted as a statutory provision. While I do not dispute any of these points, it is precisely because the UNCRPD and "General Comment 1" set out the requirements for states regarding the rights of persons with disabilities that reference should be included to them as framing the guiding principles of the principal Act, as has been repeated by Governments so many times over the years during the passage of both the 2015 Act and this amending legislation.

The goal of this law is to meet Ireland's obligations under the UNCRPD, in particular, Article 12. It is, therefore, entirely appropriate to have the requirements of both the human rights treaty and this specific provision, and its interpretation of the UNCRPD committee, as interpretative rules for the Act's guiding principles. I, therefore, urge the Minister to reconsider his position on this point. I hope he will accept the amendment.

Roderic O'Gorman (Dublin West, Green Party)
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The amendment proposes to create a new subsection under section 8 of the 2015 Act. Section 8 provides the guiding principles which underpin the Act, specifically with regard to making an intervention in respect of a relevant person. The amendment seeks to have the guiding principles interpreted in line with the UN convention, in particular, Article 12 and General Comment 1 of the UNCRPD.

As I stated on Committee Stage, while I understand the intention of the amendment, it is vague in nature and lacks the necessary legal clarity for inclusion in primary legislation. Additionally, the inclusion of this provision is not necessary from a policy perspective.The language of the convention does not lend itself to inclusion in primary law and the text of the convention is primarily by way of statements that set standards for the signatories of the convention to meet. It does this by way of general principles that are designed to be interpreted by countries adopting national laws. General comment No. 1 is a good example of this, which itself is designed as a guide to the relevant sections of the convention. As stated previously, 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 the State to be compliant with the CRPD. This means that the obligation the amendment is intended to create already exists as a matter of law without the need for this proposed amendment.

Mary Seery Kearney (Fine Gael)
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I agree with the Minister’s reply, but I take this opportunity to advocate for the ratification of the optional protocol as soon as possible, given it was contingent on this Act coming into being and the decision support service being in place.

Frances Black (Independent)
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I move amendment No. 5:

In page 10, after line 39, 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:

“(12) Nothing in this Act shall be construed as imposing any civil or criminal liability on an intervenor, who, in exercising his or her relevant powers, acted in good faith and in accordance with what, at the time in question, he or she reasonably believed to be the will and preferences of the relevant person.”.”.

Sharon Keogan (Independent)
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I second the amendment.

Roderic O'Gorman (Dublin West, Green Party)
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This amendment removes the phrase "Act of 2015" from the Bill. It is not a phrase used elsewhere in the Act and, as such, is being replaced by the term "Principal Act".

Frances Black (Independent)
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I move amendment No. 7:

In page 25, between lines 11 and 12, to insert the following: “(c) in subsection 10, by the insertion of the following paragraphs after paragraph (b):

“(c) Subject to paragraph (d), nothing in this section shall operate to prohibit bona fide representatives of the Press and researchers from attending proceedings to which this section relates.

(d)Subject to paragraphs (d) and (e), where the court is satisfied that it is necessary to do so—

(i) in order to preserve the anonymity of a party to the proceedings or any child to whom the proceedings relate,

(ii) by reason of the nature or circumstances of the case, or

(iii) as it is otherwise necessary in the interests of justice, the court may, on its own motion, or on application to it by a party to the proceedings by order—

(I) exclude, or otherwise restrict the attendance of, bona fide representatives of the Press and researchers from the court during the hearing or particular parts of it, or

(II) prohibit or restrict the publication or broadcasting of any evidence given or referred to during the proceedings or any part of such evidence,

and any such order may, with regard to any restriction, contain such conditions as the court considers appropriate.

(e)In determining whether or not to make an order under paragraph (d), a court shall have regard to the desirability of promoting public confidence in the administration of justice and to any other matter that appears to it to be relevant and shall, in particular, have regard to the will and preferences of the person to whom the proceedings relate.”.”.

Fintan Warfield (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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While it is vital to ensure individuals' will, preferences and privacy are respected, it is crucial that the public is aware of how this monumental change to Ireland's capacity laws operates in practice and that researchers can document the operation of the system. This amendment allows for judicial discretion and draws on existing legislation to ensure representatives of bona fide press, researchers and legal professionals can still attend and report on cases, subject to reasonable restrictions. The Minister introduced an amendment to this section on Committee Stage here and it allows solicitors and barristers to report on cases, as well as others within a class of persons specified in regulations.

It is not clear, however, whether this will include members of the press and researchers. On Committee Stage in the Dáil, the Minister said he would consider an amendment of this type for researchers but not for members of the press. The history of wardship would have remained entirely secret and unknown to the public if it were not for the diligent reporting of socially minded journalists, who ensured that the realities of the system could not be entirely hidden away by closed proceedings. The same level of scrutiny of the system which will replace it should also be possible. Restricting journalists who write for the public creates the unavoidable suggestion that these proceedings are a niche professional matter, which I think is untrue. All of us may experience capacity issues in our lifetimes, so the proper operation of the system is of interest to all.

When the Minister introduced his own amendment on this issue on Committee Stage here, he referenced the value of the work undertaken by researchers, like Dr. Carol Coulter, in the family law courts. He also noted that the Minister for Justice would be responsible for these regulations. If the Minister is not in a position to consider further amendments to this section or if this ruled out of order, then clarity is required regarding whether researchers and members of the press will be included in the class of persons provided for in regulations who will have permission to observe and report in this context, with the necessary privacy restrictions applying to decisions made under the Act.

Gerry Horkan (Fianna Fail)
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There is no suggestion that this amendment has been ruled out of order anyway. The amendment is certainly valid, whether it is supported or not.

Frances Black (Independent)
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Is it ruled out of order?

Gerry Horkan (Fianna Fail)
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It is not. If it was, I would not let the Senator speak on it. I call the Minister.

Roderic O'Gorman (Dublin West, Green Party)
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As the Senator said, this issue was raised by Deputy Sherlock during the debate on this matter in the Dáil and I agreed to look at the issue again. We made a change to section 36 of the principal Act and it now provides for anonymised court reporting by legal professionals. Senator Seery Kearney spoke about this issue in the context of child law reporting and suggested that if there was a desire to create a decision support service reporting process, there would be clear permission to allow it to be used. The amendment also brought in a regulating power to allow the Minister for Children, Equality, Disability, Integration and Youth, in consultation with the Minister for Justice, to include other classes of persons. Court research-type reporting is, therefore, provided for in section 36 and there is a power to include other classes of persons.

I have a concern about allowing journalists in. I think it is right that we have an in camerarule in the family courts. Some of the most distressing elements of an adult's life are being discussed in some of these cases and I question the appropriateness of having journalists there. Nevertheless, the possibility is open in respect of a regulation-making power and if a good case is made to subsequent Ministers for Justice and for Children, Equality, Disability, Integration and Youth, then there is at least the possibility that other classes of people could be included. It is important to say that the research role, as rightly flagged in the Dáil debate, has already been provided for in the amendment I brought forward. Respectfully, we have gone as far as we need to go in terms of the amendments already brought forward. I am not, therefore, in a position to accept this amendment.

Mary Seery Kearney (Fine Gael)
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I come back to the excellent example given of Dr. Carol Coulter. The observations from the family courts have been instrumental. Having an application or process with the Minister as a gatekeeper in respect of who would have access, and through which appropriate people with appropriate credentials could be granted access for research and such purposes, is necessary. The way this aspect is contained in the Bill is adequate in ensuring there is access and transparency. Where additional access is needed, there is a process in respect of the Minister contained in the legislation as well. With respect, while I understand this proposed amendment, I do not think we need to approach this in such a prescriptive way. The system is there. We do not know what other classes of persons may arise. To have this possibility addressed via a loose classification within the Bill as it stands allows for discretion in the context of other situations and categories of professionals, and otherwise, to make applications to the Minister.

Roderic O'Gorman (Dublin West, Green Party)
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This amendment clarifies the title of the new section being introduced by the Bill. The title will now reflect that this section of the Bill amending the Civil Legal Aid Act 1995 relates to Part 6 of the 2015 Act only. Part 6 of the Act deals with wardship. This is a technical amendment for the purpose of improving the text of the final Act.

Frances Black (Independent)
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I move amendment No. 10:

In page 39, to delete lines 19 to 28.

Fintan Warfield (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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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 to or refuse health treatment on a trusted supporter, at a time when they are no longer able to communicate their wishes, will have to complete a separate advanced healthcare directive. Even if they make an enduring power of attorney, the requirement to draft two separate instruments with different requirements, such as supporting evidence and witnesses, places an additional bureaucratic burden on the relevant person. This is especially burdensome if the relevant person wishes to authorise the same person, who holds the enduring power of attorney, as their designated healthcare representative to consent to or refuse treatment on their behalf, in accordance with their will and preference.

It would be 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-supporting arrangement under the Act, including decision-making assistant agreements and co-decision-making agreements. It would also be inconsistent with the recommendation of the Oireachtas Joint Committee on Children, Equality, Disability, Integration and Youth. In its pre-legislative scrutiny report, the committee recommended that health and medical treatment decisions should be retained in the scope of an enduring power of attorney.

The amendment would restore the original power that the Bill proposes to remove from individuals making an enduring power of attorney. The removal of this power is unnecessary to achieve the Minister's stated purpose of giving clarity to healthcare professionals about who has the authority to make a healthcare decision where a person lacks capacity. On Committee Stage in the Seanad, the Minister stated this was required to provide legal clarity for medical professionals and clinicians, citing a concern that if two decision supporters, such as an attorney and a designated healthcare representative, were to have equal rights in treatment decisions and were to disagree, it would be unclear as to whose view would prevail. The Minister's rationale for his amendment was to ensure all healthcare decision-making is governed by the safeguards contained in Part 8 of the principal Act. As Senator Warfield explained on Committee Stage, the principal Act already provides, in situations where one or more decision makers may have authority, the advanced healthcare directive and-or designated healthcare representative take precedence over other instruments. Certainty is already provided by the existing legislation. Deleting the Minister's amendment and retaining the option for people to appoint an attorney for healthcare decisions will ensure individuals who may use such instruments, such as older people, will not have an additional obstacle to making their will and preference known by having to make a separate advanced healthcare directive.

The Minister can be assured that his concern about the need for safeguards is well addressed within the provisions of enduring power of attorney, including the right of complaint to the Decision Support Service where there is concern an attorney has acted or may act outside the scope of his or her function. The Decision Support Service may then refer the matter to the courts for a determination which may, in turn, remove the attorney from that role.

By refusing to accept amendment No. 10 and removing the option for people to set out their healthcare decisions in an enduring power of attorney, the Minister is creating unnecessary hurdles to the vindication of the will and preferences of individuals who wish to plan for various aspects of their lives within a single instrument.

Roderic O'Gorman (Dublin West, Green Party)
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The proposed amendment seeks to delete provisions in the Bill that remove treatment decisions from enduring powers of attorney, EPAs. While I note the purpose of the Senator's amendment, I believe the provisions her amendment seeks to delete are important in providing legal clarity. The importance of such legal clarity should not be underestimated. The removal of treatment decisions from EPAs ensures there will be no ambiguity between decisions included in EPAs and those in advanced healthcare directives, AHD. This clarity is essential to medical professionals treating relevant persons with a registered AHD, particularly in cases where urgent or even life-or-death decisions are required. The supporting statement of an advanced healthcare directive, alongside the explicitly health-focused role, makes a designated healthcare representative the appropriate decision supporter.

In addition, Part 8 of the Act provides superior clarity and protections for relevant persons and healthcare professionals as to guidance on what should happen if an ambiguity arises in an advanced directive, such as when a decision supporter cannot be located immediately and a life-or-death decision must be made. Part 8 is the better part of the Act to address such concerns and sets out comprehensive and detailed provisions on treatment issues in a way sections relating to EPAs do not.

The Decision Support Service, DSS, will work to reduce any administrative burden associated with this process, and it will be permissible for the same person to act as an attorney and a designated healthcare representative. As I said on Committee Stage, the 2015 Act was reviewed in detail in the process of preparing the amended Bill. It was found there is a risk to a relevant person if two decision supporters have equal rights in treatment decisions at a moment of crisis and that the provisions of Part 8 were superior in terms of guidance and safeguard on treatment decisions.

The approach we are adopting is the correct approach. We should leave EPAs for issues such as property or personal welfare decisions. We should reserve advanced healthcare directives for health and treatment-based decisions.

Aisling Dolan (Fine Gael)
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I acknowledge it is complex legislation, and I acknowledge also Senator Black's review of it. It is important that the advanced healthcare directive is the guiding legislation around healthcare treatments. The enduring power of attorney can then be used for the other elements.

This Act is an Act for everyone. We sometimes look at this and think it may only be for people who have capacity challenges. However, it will affect every part of people's lives as they get older and it could apply to people with dementia and so on, and I know that is what is being looked at in terms of potential roles when it comes to that stage in life. This is a very difficult area, but how this legislation will be managed is a question for all of us in our communities. As was said, providing clear guidance on a single decision maker at certain stages is crucial.

Roderic O'Gorman (Dublin West, Green Party)
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Amendment No. 11 replaces an incorrect word in the amendment of section 73 of the Act. The word "subsection" is being replaced with "subject", which will clarify the meaning of the relevant paragraph. It is a technical amendment that will improve the final text of the Bill.

Roderic O'Gorman (Dublin West, Green Party)
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Amendment No. 12 modifies cross-referencing relating to EPA regulations. The modification will correct a cross-reference in section 79 of the 2015 Act, which is necessary because of the changes previously made to the Bill. It is a technical amendment that will improve the final text of the Bill.

Frances Black (Independent)
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I move amendment No. 13:

In page 62, between lines 24 and 25, to insert the following: “(a) 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.”,”.

Eileen Flynn (Independent)
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I second the amendment.

Frances Black (Independent)
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I move amendment No. 14:

In page 64, to delete lines 1 to 14 and substitute the following: “(b) by the deletion of subsection (7).”.

Eileen Flynn (Independent)
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I second the amendment.

Gerry Horkan (Fianna Fail)
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Amendments Nos. 15 and 16 are related and may be discussed together. Is that agreed? Agreed.

Frances Black (Independent)
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I move amendment No. 15:

In page 64, lines 27 and 28, to delete all words from and including “Section” in line 27 down to and including line 28 and substitute “Section 89 of the Principal Act is amended by the deletion of subsection (3)(b)(ii).”.

Eileen Flynn (Independent)
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I second the amendment.

Frances Black (Independent)
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The Bill retains discrimination against pregnant people who should have an AHD. The Minister committed to resolving this issue during pre-legislative scrutiny and on previous Stages in the Dáil but the amendment that has been made continues to treat someone's AHD differently once that person becomes pregnant. Pregnancy should not impact on an AHD. It should be within the decision-making powers of the directive-maker to stipulate if something is not to apply in the event of pregnancy. Women and people who can get pregnant deserve the security of knowing that their directive will not protect them less if they become pregnant and that their will and preferences will be respected in all circumstances.

On Committee Stage in the House, the Minister explained the purpose of section 89(3)(b)(ii), namely to ensure that "where there has been an application under section 89(2) of the 2015 Act and the directive-maker is pregnant, there can be life-sustaining treatment for the mother and treatment to prevent a deleterious effect on her pregnancy". The Minister stated his belief that changing the term used in this section from "the unborn" to "her pregnancy" ensured the section would be value neutral. However, a simple change in language does not alter the discriminatory effect of this provision. Pregnancy is the only healthcare decision singled out for specific mention. I do not think there is any justification for this. The issue of the treatment to be provided, while a decision of the High Court is awaited regarding the validity or applicability of an AHD or whether a designated healthcare representative is acting in accordance with the relevant powers, can be adequately dealt with by reliance on sections 89(3)(a) and 89(3)(b)(i) of the Act. These state that until such a decision has been made by the court, nothing in an AHD should be construed as preventing medical professionals from providing life-sustaining treatment to the directive-maker or doing any act they reasonably believe to be necessary to prevent a serious deterioration in the health of the directive-maker.

In order to avoid the provision of the differential medical treatment to pregnant people in circumstances where a question has arisen regarding an aspect of their AHD, the Minister should accept this amendment.

Gerry Horkan (Fianna Fail)
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Would Senator Mullen like to speak to this group?

Rónán Mullen (Independent)
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My amendment is in this group but I am happy to wait for the Minister's response.

Gerry Horkan (Fianna Fail)
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Would the Senator like to make his contribution in-----

Rónán Mullen (Independent)
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I am happy to wait if I am allowed to come in afterwards.

Gerry Horkan (Fianna Fail)
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Of course, the Senator is allowed to wait. That is fine.

Roderic O'Gorman (Dublin West, Green Party)
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Amendment No. 15 seeks to delete a provision relating to the ongoing care of pregnant directive-makers where the High Court is deliberating on the validity and applicability of an AHD. In general, section 89 concerns the role of the courts in clarifying, where necessary, the validity and applicability of an AHD. In the first instance, it is intended that the informal process set out in section 85(5) would be used for such purposes but referral to the High Court is available where this process cannot produce a result or where more serious issues of legal validity arise that might have implications for directives in a broader sense. It is designated to address a scenario where the will and preference of a directive-maker may not be clear in the AHD or where a legal mechanism is required to determine the validity of the AHD.

Section 89(3)(b)(ii), as amended, provides that in circumstances where there has been an application to the High Court under section 89(2) of the 2015 Act to clarify a question of applicability or validity of an AHD, pending the determination of the High Court, nothing in an AHD will prevent a person from doing any act that he or she reasonably believes necessary to prevent a serious deterioration in the health of the directive-maker or, if the directive-maker is a pregnant woman, a deleterious effect on her pregnancy. The term "pregnancy" has been changed from "unborn" in order to provide a more holistic approach to healthcare for a pregnant woman. In addition, it does not reference the language arising from the previous constitutional position, which could be interpreted in respect of a historical context that no longer exists. I stress that the provision is an interim one, designed to ensure that care can be provided pending the determination of a court. It does not provide a vehicle for a woman's will and preference to be overturned; rather, it provides a legal vehicle where an ambiguity as to will and preference, or the legal question of validity, can be resolved. The High Court will continue to have a role under section 89(2); therefore, this provision is still required, even in light of the deletion of section 85(6). As such, I am not in a position to accept this amendment.

Amendment No. 16, tabled by Senator Mullen, proposes to reverse the change made to section 89(3) on Report Stage in the Dáil. He is seeking to reinstate the original language of "the unborn" as opposed to the current wording of "her pregnancy". This matter was debated by the Senator on Committee Stage when the particular section of the Bill was opposed. There has been some debate, both on Committee Stage and in the intervening period, as to the effect of the change in language from "the unborn" to "her pregnancy" and whether this change is warranted. Let me be clear; the purpose of the change is to ensure that healthcare professionals can provide any treatment that may be required in respect of a pregnant directive-maker, including treatment of the foetus, where the court is deliberating on the applicability or validity of an AHD.

Section 89(2) provides for the consideration, with regard to life-sustaining treatment, by the High Court as to the validity and applicability of an AHD. During this period of deliberation by the High Court, section 89(3)(b)(ii), as amended, empowers the healthcare professional to act and ensure that there is no deleterious effect on the pregnancy. The term "her pregnancy" has been changed from "the unborn" in order to provide a more holistic approach to healthcare for a pregnant woman. Also, it does not reference the language arising from the previous constitutional position, which could be interpreted by a medical professional in terms of a previous legal context that no longer applies. This does not grant any power to alter or set aside an AHD where a clear expression of will and preference is in the creating instrument but it allows for a very necessary interim period when treatment can be provided, pending the court's clarification of any issue regarding the validity or applicability of an AHD.

Rónán Mullen (Independent)
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I welcome the Minister. I thank him for his engagement, and that of his officials, with me and other Senators, which arose out of concerns I raised on Committee Stage regarding a number of issues, including the one that is the subject of this amendment. It is fair to say that the Minister and I both clarified our thinking, to judge by the difference between the language in the Bill on Committee Stage and today. I also thank him for having his officials write to me with a summary of the discussion we had when we met.

I will not object to certain sections that I opposed on the previous occasion, when I raised the issue about what ought to happen where an AHD is silent on what should happen if a woman is pregnant and refusing treatment. On Committee Stage, the Minister said it was about the pregnant person who is making the AHD being in the same position as any other patient. The refinement of that position, however, which came through our conversation and was also clear from his officials, is that he has made the point, and I accept its validity, that a person who is pregnant but has not made an AHD would be in a different position. As I said, our thinking has moved on regarding that.

I am still of the view, even in the context of our abortion legislation where there is considerable protection for the unborn after 12 weeks, that there is a strong public policy argument for having and providing specifically for a presumption in favour of giving treatment in order to avoid a deleterious effect on the unborn when an AHD is silent as to whether the refusal of treatment in that regard applies to a pregnancy situation. As I said, that is, in a sense, water under the bridge. The Minister has made his point and I see a certain technical force to his argument.However, in our discussions with the Minister and his officials, we also discussed the other amendment that I tabled on Committee Stage, which is the one under discussion this evening. As he rightly said, this has to do with the temporary situation where the validity and applicability of an AHD for refusing treatment is under consideration by the courts. He seeks to continue the assurance in the law that a healthcare professional may continue to give treatment to avoid a deleterious effect on the unborn child, as it is in reality, pending the outcome of the deliberation on the AHD. We are agreed on that. This is a temporary safeguard to prevent a situation where the unborn child in the womb would suffer damage in circumstances where, in fact, the AHD might not be upheld or its validity might be in some way in doubt.

I have to correct the Minister on one point. He said that I am seeking to restore the position as it stood after the Dáil debate by restoring, as he would put it, the eighth amendment language of the unborn; I am not. My amendment does not reference the unborn; it references the unborn child. There is a significance to that. Before ever there was an eighth amendment, there was, and remains, reference to the "unborn child" in Irish legislation, as the Minister knows. I think it is section 59 of the Civil Liability Act 1961, which has to do with basically damage and the civil liability towards an unborn child who was injured in uteroand survived that situation. The law still refers to the "unborn child". There is nothing unconstitutional or confusing about it. As far as I know, the only place where a foetus is referred to - and this is the language the Minister used in his response to me on foot of my inquiries - is clearly in the abortion legislation. There is no constitutional problem with references to the unborn child in our law. If there was, the 1961 Act would surely have been amended.

There is a suggestion in what the Minister said that this is to avoid some kind of confusion where doctors or other healthcare professionals might go further than what the legislation is providing for. One would have to give some kind of evidence for that interpretation, because it is clear what the section under discussion does. It provides for the temporary permissibility of giving healthcare treatment in order to avoid damage to the unborn while the validity, etc., of the AHD is being determined by the courts. That is all that it involves. It is not an ongoing safeguard for the life of the unborn or anything like it and I do not think anybody is suggesting otherwise.

I refer to the Minister’s other argument, where he said it is somehow more holistic to get rid of a reference to the entity. I am reminded of Prince - the actor, the performer or the musician formerly known as Prince. The entity formerly called the “unborn” is now to be referred to as “her pregnancy”. Senator Seery Kearney, of course, raised an issue about that and I think Senator Black is concerned about the gender inclusivity of that. I will withhold any comment on that this evening. The idea that we must not ever refer to the unborn child again in legislation because it might somehow cast some kind of aspersion on our abortion law shows a poverty of thinking on the part of the Government and I would go so far as to say a meanness of spirit on behalf of the State. Nobody in the legislation is purporting to curtail the applicability of the abortion legislation, though many of us in the country see it as a tragic development in our law. The reality is that in the circumstances the Minister described, the unborn child, to use politically correct language that some people like to use, might have been a “much wanted child”. The idea that it is somehow more somehow more holistic to delete his or her humanity and just term him or her henceforth as “her pregnancy” is Orwellian. It seems that the Minister may think some kind of harm would flow from maintaining the reference.

This section of the legislation, which is being left intact, is precautionary for the sake not of the mother, but of the life that currently is in being. There are no two ways about it. That is what this is about. One is not trying to preserve a piece of tissue; one is trying to preserve a life, for the moment, until the AHD, which might have consequences for that life, is fully determined and investigated, as it were. The baby is being talked about. It would be tragic, indeed, if State and government officials just lost the capacity to refer to an unborn child in the womb lest they might be thought to be somehow subtracting from the abortion rights claimed by some and provided for in the law. That is a failure to engage in proper discernment about what individual Bills mean.

This legislation is not about the abortion law; it will not change it one way or the other. It is a precautionary step to avoid damaging the unborn child pending the determination of an AHD. It seems that one should not go changing language for no good reason. Using a word such as “holistic”, is, at it were, to try to cast some kind of whiff of incense over what is being proposed here. However, “holistic” means nothing in this situation. If one were to be holistic, generally, one is being inclusive. When we talk about holistic care of a person, we might be talking about social, emotional and physical care, that is, not just one dimension. I put it to the Minister that in this particular situation, being holistic would involve recognising that potentially a human life is being dealt with that may suffer damage in circumstances where the AHD, which might have consequences for that life, might not be upheld.

I received a helpful note from the Minister’s officials at his request and I thank him for it. As I said, I accept the force of some of the argument in it, particularly as regards the previous issue, which I have not opposed today, and I am not opposing those sections. However, the very short note I received on this particular point rightly states:

The provision only concerns treatment that may be provided by a healthcare professional outside the context of an AHD in circumstances where its validity or applicability is under consideration by the High Court. In changing the language used from “unborn” to “pregnancy”, the amendment ensures that healthcare professionals can provide any treatment required in respect of a pregnant directive maker.

The Minister is suggesting that if that language change is not made, they might be prevented from doing that. Where is the evidence for that? Where is the evidence that the Minister needs to change the language to ensure healthcare professionals can do whatever? The entire section is providing that they can provide care until such time as the AHD is determined. The reason they are providing that care is to avoid potentially damaging a life. That is the reality of what the section seeks to achieve, so why can the Minister not say it? Why are we so allergic now? Anyway, he is saying this ensures healthcare professionals can provide any treatment, including with regard to foetus, while the court is deliberating on the applicability, while also ensuring that the focus is on the treatment, will and preferences of the patient. That is getting a bit more to what the Minister is trying to say and do.

His officials said in our meeting that somehow he feels that if he names the unborn or unborn child as an entity, he is somehow taking the focus off the mother. However, again, that is a zero-sum game and conflictual interpretation of what is going on here. The mother has not made an AHD to destroy the life of her child. We accept that a person can make an AHD refusing treatment even if that compromises the life of her child.We accept that. However, the idea that the focus now needs to be kept on the treatment, will and preference of the patient by removing any reference to the baby, even though the very section is about protecting the baby in a precautionary way until the court has made its ruling, is mean-spirited. I do not say that as a personal accusation. I condemn the State, the statism and the hardness of heart that underlies that particular change. I ask the Minister, even at this stage, to accept my amendment on that small point for the sake of decency.

Mary Seery Kearney (Fine Gael)
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On Committee Stage, I heard Senator Mullen's argument, which came out of the blue for me as it was not something I had thought about before. I had sympathy for his view. He and I engaged extensively the following day about it. I thank the Minister for facilitating a meeting with all of us, including the officials who are present and two others from the Department of Health, subsequent to that. In that meeting, we heard in great detail the expected steps that would occur in the various scenarios that we put to the room. We considered what would happen in certain scenarios and went through various situations. Something lacking from the language of the amendments is the sheer extent of consideration that is behind all of this and which was exhibited on that day. Consequently, I support the Minister's position completely and utterly. I do not agree that there is anything mean-spirited at play.

What gave me great clarity at that meeting was that the term "her pregnancy" is included to ensure that the person requiring the treatment is at the centre of everyone's decision-making and that doctors and medical professionals in that situation are also mindful of their obligations with regard to the baby that is also present and the viability of that child. There are already protocols in place to safeguard this. It has nothing to do with, and is completely siloed from, the termination of pregnancy. That is something completely different. That point was repeatedly reiterated in that meeting and in the explanation of the sheer extent of contemplation that was brought to bear on what decisions must be made in the hopefully rare situation where this legislation needs to be relied upon.

In the interim, I have had representations from a former party colleague, Nora Owen, a former Minister for Justice and deputy leader of our party. She is currently a board member of Safeguarding Ireland. That organisation's representation was to absolutely support the wording the Minister has put here and regard it as a long overdue and needed set of words and formula. I thank Ms Owen for her work in that regard. I support the Minister's position.

Erin McGreehan (Fianna Fail)
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I accept an awful lot of what the Minister said at the meeting. I thank him for that time and thank his officials for that meeting. My only concern about all of this is that I am uncomfortable with the language and the term "her pregnancy" because in my opinion, that anonymises the baby, the wee life that is there, by not attaching a life to the pregnancy. One can be pregnant and have an unviable baby. One can have a pregnancy that does not carry through. It is unfortunate that we are moving away from acknowledging a life, particularly after the 12 weeks for which we have legislated. Thankfully, we passed a referendum to allow for that choice. However, by inserting "her pregnancy" and taking out consideration of the unborn, we are anonymising that life. I do not have adequate words, but that is reducing that life to a medical condition and not considering that life.

Eileen Flynn (Independent)
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I fully support the Minister. The woman is the one who is pregnant. I want to put that on the record.

Roderic O'Gorman (Dublin West, Green Party)
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As Senator Mullen said, we discussed two issues on Committee Stage. One related to a situation where an AHD is silent, an accident has taken place and there is a question about how a determination has been made. Our meeting and subsequent engagements were useful. We discussed section 85(5), which deals with an informal engagement to ascertain the will and preference of a pregnant woman and if that is not ascertainable, what steps are taken, including recourse to a decision support representative and engagement with the family. Section 89 is there to put that on a more formalised basis if the provisions under section 85(5) cannot deliver the required degree of clarity. Section 89(3) is there to ensure treatment continues while that process to ascertain is ongoing. When we have the opportunity to look through it in detail, we can see there is a significant range of protections and mechanisms in place to address the issue.

I will turn to consider the change that has been introduced through the replacement of "unborn child" with "her pregnancy". My officials are very clear that the reference to "unborn child" in the original 2015 Act was based on the eighth amendment. I know Senator Mullen has a different take on that point but that is the advice I have received at all times. The reason we are making this change is to avoid signalling to a healthcare provider that a position that was required under the former constitutional position continues to be maintained. The language of pregnancy that is now being used in the section does not preclude treatment for the benefit of the foetus but it does not run the risk of the particular interpretation that the former provision had.

I used the word "holistic", of which Senator Mullen was critical. Senator Seery Kearney explained what I meant by "holistic", in that we are trying to demonstrate by the use of the term "her pregnancy" that the pregnant woman is at the centre. She is the decision-maker and it is her will and preference that is central to all of this. It is for that reason I would argue that this is an holistic approach recognising that it is about advance healthcare decisions and in this case, the advance healthcare decision that a pregnant woman makes. I am not in a position to accept either the amendment from Senator Mullen or the amendment from Senators Black and Flynn.

Rónán Mullen (Independent)
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I move amendment No. 16:

In page 64, lines 27 and 28, to delete “her pregnancy” and substitute “the unborn child”.

Sharon Keogan (Independent)
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I second the amendment.

Gerry Horkan (Fianna Fail)
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Amendments Nos. 17 and 18 are out of order, as they place a potential charge on revenue.

Frances Black (Independent)
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I move amendment No. 19:

In page 75, to delete lines 14 to 30 and substitute the following:

“Amendment of section 136 of Principal Act 91.Section 136 of the Principal Act is repealed.”.

Eileen Flynn (Independent)
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I second the amendment.

Frances Black (Independent)
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I move amendment No. 20:

In page 76, between lines 19 and 20, to insert the following:

“Amendment of section 146 of Principal Act 96. Section 146 of the Principal Act is amended by the insertion of the following:

“(1) Such review will examine the operation, interpretation and accessibility of this Act and make recommendations for reform accordingly. Such review shall include consultation with, and the active involvement of, persons with disabilities through their representative organisations. Such review shall thereafter take place every 3 years.”.”.

Eileen Flynn (Independent)
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I second the amendment.

Frances Black (Independent)
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Those who campaigned for this legislation specifically argued that a comprehensive review clause was necessary to ensure that the legislation remained under review at regular intervals, given the pace of change in this area globally and advances in practice on the ground. We recommend adding a further provision to ensure that the legislation is reviewed at least once every three years. As we have seen from the review of the Mental Health Act 2001, without a legislative requirement for a regular review, ad hocreviews approved by Departments take longer to complete and risk not having the recommendations for reform met in full. Therefore, the introduction of a rolling review in respect of this legislation is appropriate.

I hope the Minister will reconsider his position on this amendment. He refused it on Committee Stage, when he stated that the Bill already contained a review clause. He also suggested that this amendment would have the unintended consequence of restricting the review to only the matters stated. He felt that it was important to ensure that the review provisions were broad enough to address whatever issues arose in the context and operation of the legislation. I agree that the review should be as broad as possible. It is for this reason that my amendment is necessary. The Bill as it stands only allows for a review of its operation and effectiveness. My amendment would include the requirement to assess the interpretation and accessibility of the legislation and for the review to be done in consultation with persons with disabilities, something that the Bill does not really require. It should also be noted that the language used in the amendment is not exhaustive and that any such review would not be limited to only examining the operation, effectiveness, interpretation and accessibility of the legislation. Those would simply be the minimum requirements of any review and it would always be open to the Minister of the day to set down broader terms of reference.

As the Bill is written, stakeholders would have no right to request a review. Therefore, it is imperative that rolling reviews be carried out every three years to ensure that any necessary amendment to the legislation is identified and incorporated in it. I ask the Minister to reconsider his position and accept this amendment.

Roderic O'Gorman (Dublin West, Green Party)
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Section 149 originally provided for a full review of the 2015 Act with the exception of Part 8, which falls under the responsibility of the Department of Health. Through Government amendments tabled in the Dáil by me, this review will now include Part 8, which has been agreed with the Department of Health. This was an important broadening of the capacity to review and reflected issues that arose during the debates as well as engagements with representative groups.

I understand that this amendment seeks to provide for an inclusive and robust review. However, it would have the unintended consequence of restricting a review to only the matters stated. The review provisions must be broad enough to address whatever issues may arise in the operation of the legislation. The amendment also seeks a review every three years after the initial review period. This would not be considered normal practice for legislation, which is reviewed on a periodic basis by Departments and Ministers as a matter of normal business. Subsequent revisions can be identified through normal business practices and engagement processes between stakeholders and the broader routine monitoring of legislative functions that all Ministers and Departments undertake. Therefore, I am not able to accept this amendment.

Aisling Dolan (Fine Gael)
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May I ask a brief question at this point?

Gerry Horkan (Fianna Fail)
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Yes.

Aisling Dolan (Fine Gael)
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It is on the Decision Support Service. Does the grouping in question have a board that is linked to the service? When a Minister is reviewing the legislation every five years and bringing together all of the knowledge in the Department, will that review include representative organisations through the Decision Support Service? Will the Minister elaborate on whether representative groups will be involved? I understand the timing of every five years.

Roderic O'Gorman (Dublin West, Green Party)
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The provision makes it an inclusive and broad review process. Initially, it will review how the legislation itself is working, but we are aware of the need to be inclusive and to understand how the legislation is operating in the wider context.

Mark Daly (Fianna Fail)
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Amendment No. 22 arises out of committee proceedings.

Roderic O'Gorman (Dublin West, Green Party)
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This amendment extends the cap on Circuit Court judges to 40, an increase of three. I am aware that the commencement of the 2015 Act will impact the Circuit Court, particularly in terms of the appointment of decision-making representatives under Part 5. All decision-making representative applications will go to the Circuit Court once the Act is commenced. When combined with the changes made to the nursing homes support scheme, we must acknowledge the increased caseload that will be generated for the Circuit Court. Without a period of operation of the 2015 Act to examine, it is not possible to be exact as to the number of applications expected to come before the Circuit Court, but it is estimated by the Decision Support Service that there will be approximately 1,200 court applications each year under Part 5 of the 2015 Act. In addition, the Circuit Court will now deal with nursing homes support scheme applications, which will be formally carried out by county registrars. This follows the introduction of Government amendments on Committee Stage, having regard to the superior protections offered in the 2015 Act relating to the relevant person's will and preference.

The inclusion of the proposed amendment to allow for the immediate recruitment of three Circuit Court judges will ensure that, in advance of broader considerations around judicial resourcing, the immediate caseload generated by the commencement of the 2015 Act will be more manageable. I thank my colleagues, the Ministers for Justice and Public Expenditure and Reform, for supporting this important measure, which ensures that the Circuit Court will be ready to process Part 5 applications upon commencement.

Mark Daly (Fianna Fail)
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Amendments Nos. 23 to 26, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Roderic O'Gorman (Dublin West, Green Party)
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Amendments No. 23 and 24 ensure that there is clarity regarding the appointment of care representatives under the Nursing Homes Support Scheme Act 2009, particularly those appointed after the enactment and commencement of this Bill. In that regard, this group of amendments chiefly improves continuity and transitional provision. Following commencement of the amended 2015 Act, care representative applications may no longer be made to the court under the Nursing Homes Support Scheme Act 2009. However, care representative transitional arrangements introduced on Committee Stage allow for applications made prior to commencement to be processed to completion. A small number of care representatives may still be appointed following commencement where an existing application was in process prior to commencement.A care representative appointed before commencement may be replaced by certain decision supporters under arrangements provided for in the Bill. The amendments seek to clarify that care representatives appointed after commencement may also be replaced under the same arrangement. This is to ensure there is no ambiguity with regard to care representatives whose applications were completed following commencement and a clear delineation of responsibilities with regard to a relevant person's affairs. Amendments Nos. 25 and 26 are minor technical amendments to clarify language and grammar in the Bill.

Mark Daly (Fianna Fail)
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Amendments Nos. 27 to 30, inclusive, are related and may be discussed together.

Frances Black (Independent)
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I move amendment No. 27:

In page 86, line 4, to delete “2006;”,” and substitute the following:

“2006;

(hb) in the performance of its functions as the independent monitoring mechanism under the Convention, to ensure extensive and meaningful engagement with all persons with disabilities in the State, in accordance with Articles 1, 4(3), and 33 of the Convention;”,”.

Fintan Warfield (Sinn Fein)
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I second the amendment.

Frances Black (Independent)
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I thank the Minister for considering the amendment we brought on Committee Stage with regard to the proportion of positions on the Irish Human Rights and Equality Commission's, IHREC, disability advisory board reserved for people with disabilities. The amendment seeks to use the UNCRPD definition of "disability" for the criteria of membership of IHREC's disability advisory committee rather than the more antiquated definition contained in the Disability Act 2005.

The Minister refused to accept this amendment on Committee Stage and stated there was a need for consistency across legislation and that the definition contained in the Disability Act 2005 is well known and well used. However, it is important to note that the 2005 Act was enacted before the drafting and adoption of the UNCRPD. The definition of "disability" contained in the 2005 Act takes a more restrictive and medicalised approach to disability than the UNCRPD, which defines persons with disabilities as including "those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others". Ireland has ratified the UNCRPD and, therefore, accepted this definition.

It is also important to note that the Disability Act predates the UNCRPD and does not reflect current understandings of the human rights model of disability. In addition, in its recruitment campaign for the disability advisory committee earlier this year, IHREC aligned its definition of "disability" with that contained in the UNCRPD, rather than the Disability Act. Given IHREC has adopted the UNCRPD definition of "disability" in its work, will the Minister accept there is no reason to refuse this amendment to give life to the UNCRPD in our domestic legislation? We should not discard useful elements of the convention to make shortcuts. This is important legislation and it is worth doing it right.

Roderic O'Gorman (Dublin West, Green Party)
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I will speak to each of the amendments in the grouping. While I understand the intent behind amendment No. 27, the current wording is problematic as it is not feasible or practical to specify in law that IHREC must extensively engage with all persons with a disability. This could lead to a situation in which IHREC undertook a detailed consultation process and, yet, becomes subject to a legal challenge from one person omitted from such a consultation. It would inevitably make a consultation process unworkable. It is important to remember IHREC already has a disability advisory committee composed of people with lived experience of disability and has discretion and a strong record with regard to engagement with all necessary persons and organisations in the conduct of its functions.

With regard to amendment No. 28 and Government amendment No. 29, there was discussion on Committee Stage and in the Dáil with regard to the make up of the committee. I agreed with Senators Black and Warfield to look at this. Thus, I am bringing forward amendment No. 29 to increase the representation of disabled persons on the advisory committee to support IHREC in its role of monitoring and promoting the implementation of the UNCRPD. Representation by disabled persons on the advisory committee was originally required to be at least half and this amendment will increase that representation to two thirds. A number of Deputies proposed this amendments and, indeed, Senator Black has a similar amendment that is slightly differently worded. With respect, I will not accept Senator Black's amendment. We will go with our wording but we thank Senator Black and other Deputies and Senators for their engagement on this point.

While I acknowledge the intention of amendment No. 30, I am not in a position to accept it. The definition of "disability" in the Disability Act 2005 is widely used, carries legal weight within the State and is cross-referenced in a number of key areas. It is important the legal definitions within the Irish Human Rights and Equality Commission Act 2014 are consistent with other definitions contained within primary law. As mentioned on Committee Stage, there are important provisions on disability contained within both the Equal Status Act and the Employment Equality Acts and any definitions need to be aligned with them. What is assigned to disability within the 2005 Acts is well-established, widely known and widely used. In addition, the definition in the convention is not legally or technically tight or precise enough to function as a legal definition on the Statute Book or the purpose of the text in domestic law. For that reason, I am not in a position to accept the amendment.

Frances Black (Independent)
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I move amendment No. 28:

In page 86, line 17, to delete “at least half” and substitute “two-thirds”.

Fintan Warfield (Sinn Fein)
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I second the amendment.

Fintan Warfield (Sinn Fein)
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May I commend the Minister on the amendment?

Mark Daly (Fianna Fail)
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You most certainly may.

Frances Black (Independent)
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I move amendment No. 30:

In page 86, lines 18 and 19, to delete all words from and including “have,” in line 18 down to and including line 19 and substitute the following:

“be persons with disabilities within the meaning of Article 1, United Nations Convention on the Rights of Persons with Disabilities.”.”.

Fintan Warfield (Sinn Fein)
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I second the amendment.

Mark Daly (Fianna Fail)
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When is it proposed to take the Fifth Stage?

Mary Seery Kearney (Fine Gael)
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Now.

Mary Seery Kearney (Fine Gael)
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May I speak?

Mark Daly (Fianna Fail)
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I ask that you make a very brief comment.

Mary Seery Kearney (Fine Gael)
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I appreciate we have the Finance Bill this evening but I will begin by thanking the Minister. There has been extensive engagement and him and his officials have been exceptional throughout. It is very important we move as quickly as possible, that everyone is resourced to do so and the day of wards of court be over as quickly as possible. It is incumbent on me to mention there is a small group of wards for which justice remains outstanding. We need a solution to that and I may engage with the Minister at a later point on it because there is certainly a terrible injustice there for some. With the passing of the Bill into law and its signature, we should hasten the moment when we ratify the optional protocol on the UNCRPD.

Erin McGreehan (Fianna Fail)
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I congratulate the Minister on bringing forward this important legislation. I have been fighting against things I do not necessarily agree with in it but, overall, what we are doing here is very important. We see people in our constituencies go into the ward of court system far too often.That is absolutely wrong and I am proud to be part of changing that. We have to work hard now to get the mental health Bill through, to make sure we look after people. We must look at the discriminations we have put into law, get rid of them and move forward as soon as possible. I thank the Minister's officials. All through the process there has been huge engagement with many stakeholders and the Decision Support Service. As we move into 2023 with the enactment and commencement of this Act, the Department must make sure people are supported to come out of the ward of court system with proper housing and the proper supports to live independently. They must be allowed to be themselves where they are not allowed to do that now. We also need to make sure we have a properly resourced Decision Support Service in order to work through those applications for review by wards of court as soon as possible and as quickly as possible.

I thank all my colleagues for their engagement, as well as the people who have been working on this Bill and have put so many hours into it for no pay. Their work has been voluntary. I think of the work of Fiona Walsh, who is in the Visitors' Gallery, and so many others.

Frances Black (Independent)
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I just want to say well done to the Minister. He worked very hard on this and took it very seriously. We did not agree on a few things but his engagement and communication with us was appreciated. I again thank him and his officials. I also thank all the campaigners who worked extremely hard on this and are very passionate about this Bill. I mentioned them earlier but I would refer again to Ber Grogan from Mental Health Reform, Professor Eilionóir Flynn, Fiona Walsh, who is extremely passionate and has spoken about her own lived experience, Dr. Fiona Morrissey and many more who have been in contact with our office and who worked extremely hard on this Bill. I am glad it has passed. I again thank the Minister and his Department for all the work on this area.

Roderic O'Gorman (Dublin West, Green Party)
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I thank the Senators for their kind comments. It is an important day. We are today taking the second-last step towards consigning wardship to being a historical point rather than a lived reality. It is a Victorian institution but it remains a lived reality for thousands of people in our country today. That is no longer an appropriate mechanism to deal with the many sensitive, personal, technical and legal requirements that stem from a person whose capacity is diminished, and has not been for a long time. It does not recognise the spectrum across which a person's capacity can be diminished. A previous Dáil took the steps necessary to address this but those provisions have not been in operation. We will have to bring this legislation through one final session in the Dáil and I look forward to doing that before the Christmas recess. I am very grateful to Senators for their engagement. This legislation is stronger for the process it has gone through, notwithstanding the legitimate concerns that have been raised. It was important that I had the opportunity today to set out the work that is going on across government, particularly in the Department of Health, on the reform of the Mental Health Act and our view of what the common goal is. That goal is to have a single treatment of everybody under section 4 of the revised Mental Health Act in terms of their ability to access advanced healthcare directives. I thank Senators, Deputies and those in the advocacy groups. I look forward to getting this passed quickly through the Dáil and having it enacted and up and running in 2023.