Assisted Decision-Making (Capacity) Bill 2013: Report Stage

Amendments Nos. 1, 5, 81 to 87, inclusive, 121 and 148 form a composite proposal and may be discussed together by agreement.

I move amendment No. 1:

In page 9, lines 13 to 16, to delete all words from and including "to" in line 13 down to and including "persons;" in line 16.

The amendments in this group propose the deletion from the Bill of the informal decision-making provisions about which Deputy Mac Lochlainn expressed concerns. Amendment No. 1 arises from amendments Nos. 81 and 84 which delete Part 8 which provides for informal decision-making. Amendment No. 1 removes reference to informal decision-making from the Long Title. Amendment No. 5 is consequential and arises from amendments Nos. 81 and 84. It removes references to informal decision-making from the definition of "intervention" in section 2.

Amendments Nos. 81 and 84 propose the removal of the provisions on informal decision-making.

I proposed a series of amendments on Committee Stage which were intended to strengthen the safeguards governing informal decision-making and to limit the circumstances in which decisions could be made formally. However, concerns were raised during the committee's deliberations which pointed to the continuing risk posed by these provisions. Following careful consideration by the Department of Justice and Equality, the Department of Health and the Office of the Attorney General, it is considered prudent to remove these provisions entirely from the Bill. Their original purpose was to protect health care workers from liability for health care related actions taken on behalf of a person lacking capacity. I have been advised that the existing provisions on civil liberty, including those which protect good samaritans, are sufficient for this purpose and that sections 61 and 62 can be removed safely from the Bill. As my amendments respond to Deputy Mac Lochlainn's concerns, I ask him not to press amendments Nos. 82, 83 and 85 to 87, inclusive. Amendment No. 121 is intended to remove a reference which is obsolete if amendments Nos. 81 and 82, which propose the abolition of informal decision-making, are accepted. If informal decision-making is removed from the Bill, it will no longer be necessary for a code of practice to be prepared to guide persons making decisions on an informal basis. Amendment No. 148 is a consequential amendment arising from amendments Nos. 81 and 82 which propose to remove sections 61 and 62 on informal decision-making. If the amendments are agreed, the provisions on offences in section 127 do not need to provide for offences by informal decision-makers.

This is a welcome initiative by the Minister of State and appears to address one of the key concerns we had and in respect of which I resubmitted amendments. While I think the Minister of State has addressed the concerns, I will reflect on the wording and intent of the amendments notwithstanding that I will be mindful to withdraw them when we come to them later. There are some concerns and, in fairness to her, the Minister of State continues to engage with a number of NGOs around them. I will revisit those later as we go through the amendments. I appreciate that the Minister of State has submitted a substantial number of amendments on Committee and Report Stages and is clearly engaging with the concerns people have. That said, concerns remain. The Bill will also go through the Seanad and I ask that the Minister of State consider again in the Seanad whatever emerges on Report Stage here. I welcome the Minister of State's assessment this morning and will have a look at it as I engage with the process this morning.

We have been working on the Bill for a considerable time and have been listening very intently to the Opposition and NGOs. The Office of the Attorney General has been centrally involved also. This addresses the issue and it was a point well made. I understand that it is difficult to get back into the swing of the debate around this complex area. That is why we have to get it right. Sometimes, it is only when one meets the obstacle in an area as complex as this that one realises that it actually exists. I appreciate as does the Deputy that we have addressed that concern.

It is important to have the debate and to use our parliamentary time to address any of the confusion that exists. This is a very complex area, as the Minister of State has said, and it is important that we wholesomely engage. Clearly, there is confusion in the process when one has Government backbenchers seeking to amend the Bill. The spirit in which we want to see the Bill progress is shared and the Minister of State should not leave here today having left a doubt that this is a component of us fulfilling an incremental target in respect of the UN convention for people with disabilities. That is what we are trying to do. For some people it is as clear as mud while for others it is complex. As such, we should use parliamentary time, "parler" being French for talking it out. We need to talk this out so that we are clear for everybody about the spirit of the legislation and, if need be, the Minister of State must be open in the Seanad where aspects of the Bill are found not to fulfil the spirit in which she set out. I do not dispute that the Minister of State does that here today. Indeed, I have the highest expectation that she will do everything possible to ensure the legislation supports and is in the interests of the people who have grave concerns in this area.

I accept fully everything that has been said. Those who have an interest have a very deep and committed interest in the area. Given that the Deputies opposite have engaged with people who have a particular interest in the area, they will know that those people want the Bill passed quickly. We must keep that in mind. We must also make it very clear that this is not just about people with disabilities. It is about each and every one of us as we age and about people who acquire a brain injury or develop dementia. It is about those who lack capacity in certain other areas. As such, it is about each and every one of us. I would not like the Bill to be pigeon-holed as an issue for people with disabilities. That is not what it is. It is comprehensive legislation which will affect each and every one of us. I assume the signing and ratification of the convention is very important, but far more important is us getting our legislation right.

The key issue NGOs and the Centre for Disability Law and Policy at NUIG have raised is that the legislation must comply with the Convention on the Rights of Persons with Disabilities. That is the key concern they have and, obviously, it is an important one. I ask that the Minister of State continues to engage with these civil society partners who work at the frontline. In fairness to the Minister of State, I acknowledge that she very much respects that. It is notable that on Committee and Report Stages, there have been significant numbers of amendments from the Minister of State and, as such, the legislation is a work in progress. The Minister of State is right that we need to get the Bill over the line now. I would like to see that happen too. Before we go to the Seanad, I ask the Minister of State to engage to ensure that the NGOs and the centre at NUIG are satisfied that the legislation complies with the UN convention. If they are, I would be very much satisfied from an Opposition perspective. I acknowledge the progress that has been made and hope we can make the legislation as strong as possible by the time it comes through the Seanad.

The considerable number of amendments are the result of having listened to and spoken not only to NUIG but with everyone else too. What I was hearing up to yesterday was that this was never going to happen. It is important that it does. I could talk for Ireland on this issue as could everyone else, but we are at the point now where we need to do the business.

Amendment agreed to.

Amendment No. 2 in the name of the Minister of State arises out of Committee Stage proceedings. Amendments Nos. 2, 3, 8, 21, 22, 24, 37, 44 to 50, inclusive, 60, 62, 88, 129 and 134 to 140, inclusive, are related drafting amendments, amendments Nos. 60 and 62 form a composite proposal and the amendments will be discussed together.

I move amendment No. 2:

In page 10, between lines 32 and 33, to insert the following:

“ “child” includes a step-child;”.

The purpose of these amendments is to clarify the intent of certain provisions, simplify text and provide additional definitions where required. Amendments Nos. 2, 3 and 8 insert additional definitions in section 2. Amendments Nos. 21, 22 and 24 amend section 13 and are technical in nature. Section 13, which defines the primary terms referred to in Part 4, has been tidied. Unnecessary text and definitions have been removed and the definition of "authenticated" has been moved from section 19 to section 13.

Amendment No. 37 amends section 21 to clarify that the director must keep a record of any body or person that receives an authenticated copy of a part of a co-decision making agreement as well as those who receive a copy of the full agreement.

Amendments Nos. 44 to 50, inclusive, are technical amendments to section 27, which provides for the Minister to make regulations in respect of co-decision making agreements. The amendments insert the relevant section references into the various paragraphs in subsection (1) and section 27.

Amendment No. 60 is a technical amendment to clarify that the person appointed as a decision-making representative must be suitable for the role, which was an issue raised on Committee Stage. It inserts the word "suitable" in section 32(2)(b), thus making section 33(1) redundant. Accordingly, amendment No. 62 proposes the deletion of section 33(1).

Amendment No. 88 is a technical amendment to section 63. It tightens the text and clarifies the intent of the provision.

Amendments Nos. 129 and 134 are technical amendments to make clearer the intent of the provisions concerning the Hague Convention on the International Protection of Adults. The first amendment removes an unnecessary provision while the second clarifies that the person to whom section 101(2) applies is the donor of an enduring power. Amendments Nos. 135, 137 and 138 are intended to clarify that the references are to convention countries other than the Irish State. Amendments Nos. 136 and 139 are intended to clarify for us all that the references to "Article 33" are to Article 33 of the convention. Amendment No. 140 is intended to clarify the references to a central authority or similar competent authority in another country that is a party to the convention. No substantive changes are intended as a result of these amendments.

It is clear that the Minister of State has listened during this process, given the scale of the amendments. The spirit of what we are trying to achieve concerns the interests of the people. The Minister of State mentioned that this Bill is not strictly about the perception of a sector within the mental health field. That is well noted.

We will support this legislation as best we can where possible. No legislation is perfect. Any legislator who believes that he or she can walk out of this Chamber having enacted perfect legislation is fooling himself or herself. We need to accelerate this aspect of our work as quickly as possible. The Bill will act as a point of reference for us. If it is not perfect, we can fix the imperfections later. That is what legislating involves.

I support the Minister of State's comments in the context of the amendments. We should accelerate to the next Stage as quickly as possible in the same spirit in which we are engaging today.

Amendment agreed to.

I move amendment No. 3:

In page 11, between lines 7 and 8, to insert the following:

“ “debt settlement arrangement” has the meaning assigned to it by section 2 of the Personal Insolvency Act 2012;”.

Amendment agreed to.

Amendment No. 4 arises out of committee proceedings. Amendments Nos. 4, 9 to 12, inclusive, 14, 15, 17, 23, 25, 34 to 36, inclusive, 43, 56, 65, 70, 73, 110, 111, 113, 115, 120, 130 to 133, inclusive, and 147 are related drafting amendments and may be discussed together.

I move amendment No. 4:

In page 11, line 15, to delete “representative” and substitute “representation”.

The purpose of these amendments is to correct typographical errors and remove superfluous text. Amendments Nos. 4 and 9 correct typographical errors. Amendment No. 10 deletes paragraph (l) in the definition of "property and affairs" in section 2. That paragraph makes the definition overtly broad, widening it to include other matters relating to the relevant person's property and affairs. The definition should be as precise as possible. This is a safeguard to avoid a person using a catch-all provision to take control of the property of a person with capacity decisions that goes beyond the authority vested in him or her.

Amendments Nos. 11, 12, 14, 15, 17, 23 and 34 remove superfluous text. Amendment No. 25 removes the superfluous definition of "register" from section 13, as section 21 already provides that definition in Part 4.

Amendments Nos. 35 and 36 are technical amendments to section 21. They refine the language in the section in order to clarify the intention of the provision.

Amendment No. 43 is a technical amendment to section 27, refining the section's language in order to clarify the intention of the provision. We must keep in mind those for whom this legislation is intended.

Amendments Nos. 56, 65, 115 and 120 are technical amendments to correct typographical errors.

Amendment No. 70 is intended to remove the possibility for a court to vary or discharge a co-decision making order. As a co-decision making agreement is made directly between the relevant person and the co-decision maker, the decision to vary or discharge the agreement is a matter for them subject to the safeguards set out in Part 4.

Amendment No. 73 removes superfluous text from section 43(4).

Amendment No. 110 is intended to clarify that the director may consult with any person who has functions in respect of the care or treatment of a relevant person when the director is carrying out any of his or her functions rather than simply his or her function under section 76. The amendment would enable the director to consult a person when carrying out investigations, for example.

Amendment No. 111 proposes to delete the phrase "to the office", as it is not necessary for the meaning of the provision. The amendments agreed on Committee Stage provide that the Circuit Court may have jurisdiction as well as the High Court, where appropriate, in proceedings concerning cases arising under the Hague Convention.

Amendments Nos. 130 to 133, inclusive, are technical in nature and reflect that more than one court may exercise functions under these provisions. No change of substance is envisaged by these amendments.

Amendment No. 147 is a technical amendment to insert more correctly the proposed amendment into the Courts (Supplemental Provisions) Act 1961.

Amendment agreed to.

I move amendment No. 5:

In page 12, to delete lines 2 and 3 and substitute “attorney or designated healthcare representative,”.

Amendment agreed to.

Amendment No. 6 arises out of committee proceedings. Amendment No. 6 is consequential on amendment No. 7, so these may be discussed together.

I move amendment No. 6:

In page 12, line 5, to delete “general visitor,” and substitute “general visitor, or”.

Amendments Nos. 6 and 7 remove references to "wards" and "wardship" from the definition of "intervention".

Wardship is regulated by the President of the High Court and the Lunacy Regulation (Ireland) Act 1871. It is not possible or appropriate that the committee of a ward would be subject to the provisions of the Bill. The Bill provides for the phasing out of adult wardship and committees and all new interveners will have to abide by the provisions of the Bill.

I welcome the amendment. We agree with the spirit of what the Minister of State is trying to achieve. We have come from an evolving society in which many dark things happened historically. I welcome the amendment of the cold language in many parts of the historical legislation. I welcome the technical amendments, the humanisation of the legislation and the removal of cold language that has dominated many aspects of our institutional history, be it in respect of mother and baby homes or other institutions. We must break down the barrier and humanise the provisions to acknowledge that the institutions are home to real citizens or real people. I welcome the fact that we have ruthlessly amended the legislation. I acknowledge the Minister of State's commitment in that regard.

Amendment agreed to.

I move amendment No. 7:

In page 12, lines 6 to 8, to delete all words from and including “professional, or” in line 6 down to and including line 8 and substitute “professional;”.

Amendment agreed to.

I move amendment No. 8:

In page 12, between lines 26 and 27, to insert the following:

“ “personal insolvency arrangement” has the meaning assigned to it by section 2 of the Personal Insolvency Act 2012;”.

Amendment agreed to.

I move amendment No. 9:

In page 13, line 17, to delete “decision-making representative,” and substitute “decision-making representative”.

Amendment agreed to.

I move amendment No. 10:

In page 13, to delete line 24.

Amendment agreed to.

I move amendment No. 11:

In page 13, lines 34 and 35, to delete “as a decision on which that decision-making assistant may assist the appointer”.

Amendment agreed to.

I move amendment No. 12:

In page 13, lines 39 and 40, to delete “as a decision to be made jointly by the appointer and the co-decision-maker”.

Amendment agreed to.

Amendments Nos. 13 and 16 are related and may be discussed together.

I move amendment No. 13:

In page 13, after line 40, to insert the following:

“(c) in relation to a decision made, or to be made, by a court on behalf of a relevant person, means a decision on a matter the subject of the decision-making order and which falls within the scope of that order,”.

Amendment No. 13 inserts a new paragraph in the definition of "relevant decision" to include decisions made by the court on behalf of the relevant person. This was omitted in error from the Bill as published.

Amendment No. 16 substitutes amended text into the definition of "relevant decision". The amended text clarifies that a relevant decision includes decisions made under an advanced health care directive irrespective of whether there is a designated health care representative.

Amendment agreed to.

I move amendment No. 14:

In page 14, lines 4 and 5, to delete “as a decision to be made by the decision-making representative on behalf of the relevant person”.

Amendment agreed to.

I move amendment No. 15:

In page 14, line 9, to delete “as a decision to be made by the attorney on behalf of the relevant person”.

Amendment agreed to.

I move amendment No. 16:

In page 14, to delete lines 11 to 14 and substitute the following:

“(e) in relation to a decision made, or to be made, under an advance healthcare directive (and whether or not there is a designated healthcare representative under the directive), means a decision which falls within the scope of that directive;”.

Amendment agreed to.

I move amendment No. 17:

In page 14, lines 19 to 21, to delete all words from and including “and” in line 19 down to and including line 21.

Amendment agreed to.

Amendments Nos. 18, 19, 57, 59, 61, 64, 74, 75, 103, 104, 114, 116, and 122 to 125, inclusive, are related technical amendments and may be discussed together.

I move amendment No. 18:

In page 14, line 36, to delete “section 32(3)” and substitute “section 32(4)”.

Amendments Nos. 18, 19, 57, 59, 64, 74, 75, 103, 104, 114, and 122 to 125, inclusive, are technical amendments to correct incorrect cross-references. Amendment No. 18 is a technical amendment to correct an incorrect cross-reference. Amendment No. 19 is a technical amendment to correct an incorrect cross-reference. The reference to section 110 was carried over in error from the amendment on Committee Stage to the Bill, as initiated. Section 110 referred to the Lunacy Regulation (Ireland) Act 1871, which is now proposed to be repealed.

Amendment No. 61 is a technical amendment to clarify that the provisions of section 82 as a whole apply to this provision. Section 82 provides for the director to maintain panels of decision-making representatives, special visitors, general visitors and court friends. This is in the spirit of the Bill more than anything else. Amendment No. 116 is a technical amendment to correct an incorrect cross-reference and to make the intent of the provision clearer.

Amendment agreed to.

I move amendment No. 19:

In page 16, line 9, to delete “, 70(2) and 110” and substitute “and 70(2)”.

Amendment agreed to.

I move amendment No. 20:

In page 16, to delete lines 26 to 31 and substitute the following:

“(3) Notwithstanding any other provision of this Act—

(a) any decision regarding the donation of an organ from a living donor shall, where the donor is a relevant person who lacks capacity, be determined by the High Court, and

(b) where an application in connection with the withdrawal of life-sustaining treatment from a relevant person who lacks capacity comes before the courts for adjudication, that application shall be heard by the High Court.

(4) Nothing in this Act shall be construed as authorising any person to give consent for a non-therapeutic sterilisation procedure to be carried out on a person who lacks capacity.”.

Amendment No. 20 has been proposed to clarify more precisely the Bill's intention with regard to organ donation and the withdrawal of life-sustaining treatment and non-therapeutic sterilisation.

On the issue of organ donation, the existing provision is that the High Court would have jurisdiction in every matter concerning organ donation. The proposed amendment clarifies that the decision on the donation of organs from living donors who lack capacity will have to be determined by the High Court. The jurisdiction will remain that of the High Court, which reflects the seriousness of decisions that might need to be taken on this issue. The proposed amendment relates only to organ donation from living donors and will not have any impact on current or planned policies of the Department of Health on cadaveric organ donations.

An amendment is necessary to the Bill's provisions with regard to the withdrawal of life-sustaining treatment. Medical personnel have alerted us to the risk that the provision as currently drafted would cut across existing clinical practice and would make it impossible for clinicians to take the decisions they take every day to determine when treatment should cease, for example, where further treatment would be considered futile or would create unnecessary suffering for the patient at the end of life. The provisions as drafted would require hospitals to have recourse daily to the courts to decide when life-sustaining treatment might be withdrawn from patients in terminal cases. This would create circumstances of great trauma for families at a time when a loved one is at the end of life. The amendment I propose is intended to rectify the situation where an application is made to the courts in the context of the dispute or where legal clarity is required on a decision to withdraw life-sustaining treatment. This application will be reserved to the High Court. Reserving such cases to the High Court reflects the seriousness of such decisions where they have to be determined by the courts. This means that if a family member disagrees with a clinical decision, she or he will have the option to apply to the High Court for a determination on the matter. Similarly, if a hospital is unclear as to the decision that needs to be taken, it can apply to the High Court for adjudication.

On the issue of non-therapeutic sterilisation, my amendment seeks to strengthen the legislative protection in this area. The amendment would bring the Bill into compliance with a series of international human rights conventions that reject forced sterilisation of a person without his or her consent. Forced sterilisation of girls or women with disabilities is a breach of Article 10 of the International Covenant on Economic, Social and Cultural Rights. The Committee on the Rights of the Child has identified forced sterilisation of girls with disabilities as a form of violence, while the Committee on the Elimination of Discrimination against Women regards forced sterilisation of women as contrary to the woman's right to informed consent. Similarly, Article 23(1)(c) of the UN Convention on the Rights of Persons with Disabilities requires state parties to ensure persons with disabilities retain their fertility on an equal basis with others. The amendment, therefore, would strengthen the legislative protection for persons with capacity difficulties by preventing anyone from using the Bill as authorisation to take a decision on the non-therapeutic sterilisation of a person lacking capacity. The effect of the amendment would be to reinforce the right to bodily integrity of a person with capacity difficulties. I consider this amendment to be a significant step forward in protecting persons with capacity difficulties against non-therapeutic sterilisation.

I agree with the Minister of State that this is a significant amendment and we will support it.

I would anticipate that there is nowhere in this legislation that the Minister of State would expressly provide for the effecting of consent around marriage, civil partnership, civil relationships, placing children for adoption, any sexual relations, or voting on election days. We had the Electoral (Amendment) Bill for people who had visual disability. We hope and anticipate that over the course of the next week we will see some movement on that, in that the Electoral (Amendment) (No. 2) Bill is scheduled to be discussed either this week or next week; I stand to be corrected on that.

We welcome and support the amendment. The Minister's language shows us how barbaric our past was in this respect. I would say to people who have concerns about the legislation that although it may not be perfect, it is a giant step away from where we have been in our past in terms of our dark history, so it is important that we progress the legislation in its in entirety. In particular, I welcome the fact that the Minister has made a significant step in helping to close a dark chapter around language, which could only indicate a darkness around actions. It is important that we progress the Bill and fundamentally support the spirit in which the Minister has amended the legislation.

Amendment agreed to.

I move amendment No. 21:

In page 23, between lines 16 and 17, to insert the following:

“ “authenticated”, in relation to a co-decision-making agreement which is registered, means bearing the signature of the Director, the date on which his or her signature was applied and the date of registration of the co-decision-making agreement;”.

Amendment agreed to.

I move amendment No. 22:

In page 23, between lines 20 and 21, to insert the following:

“ “co-decision-maker appointer” means a person who appoints a co-decision-maker under section 14;”.

Amendment agreed to.

I move amendment No. 23:

In page 23, line 22, to delete “as such agreement is in force from time to time”.

Amendment agreed to.

I move amendment No. 24:

In page 23, to delete lines 23 to 26.

Amendment agreed to.

I move amendment No. 25:

In page 23, to delete lines 27 and 28.

Amendment agreed to.

I move amendment No. 26:

In page 23, to delete lines 31 to 37, to delete page 24, and in page 25, to delete lines 1 to 9 and substitute the following:

“14. (1) Subject to the provisions of this section, a person who has attained the age of 18 years and who considers that his or her capacity is in question or may shortly be in question may appoint a suitable person who has also attained that age to jointly make with the first-mentioned person one or more than one decision on the first-mentioned person’s personal welfare or property and affairs, or both, in compliance with this Part and regulations made under section 27.

(2) A person is suitable for appointment as a co-decision-maker if he or she—

(a) is a relative or friend of the appointer who has had such personal contact with the appointer over such period of time that a relationship of trust exists between them, and

(b) is capable of effectively performing the functions under section 16.

(3) An appointment as a co-decision-maker shall be made in writing in a co-decision-making agreement that is in compliance with this section and regulations made under section 27.

(4) Notwithstanding the definition of “property and affairs” in section 2 an appointer shall not include in a co-decision-making agreement provision for the disposal of his or her property by way of gift.

(5) A co-decision-making agreement shall contain the following:

(a) the name, date of birth and contact details of the appointer;

(b) subject to subsection (6), the signature of the appointer and the date that he or she signed the agreement;

(c) the name, date of birth and contact details of the co-decision-maker;

(d) the signature of the co-decision-maker and the date that he or she signed the agreement;

(e) the signatures of the 2 witnesses referred to in subsection (7).

(6) A co-decision-making agreement may be signed on behalf of the appointer by a person who has attained the age of 18 years and who is not the co-decision-maker or one of the witnesses referred to in subsection (7) if—

(a) the appointer is unable to sign the agreement,

(b) the appointer is present and directs that the agreement be signed on his or her behalf by that person, and

(c) the signature of the person is witnessed in accordance with subsection (7).

(7) (a) The appointer, or the person signing on his or her behalf in accordance with subsection (6), and the co-decision-maker shall sign the co-decision-making agreement in the presence of each other and in the presence of 2 witnesses—

(i) each of whom has attained the age of 18 years,

(ii) of whom at least one is not an immediate family member of the appointer or the co-decision-maker, and

(iii) neither of whom is an employee of or agent of the co-decision-maker.

(b) Each of the witnesses referred to in paragraph (a) shall witness the signature of the appointer (or the person signing on his or her behalf) and the signature of the co-decision-maker by applying his or her own signature to the co-decision-making agreement.

(8) An appointer may appoint more than one person as a co-decision-maker but may not—

(a) appoint in the same co-decision-making agreement more than one person as a co-decision-maker, or

(b) appoint in a co-decision-making agreement a co-decision-maker in respect of a relevant decision which is the subject of another co-decision-making agreement.

(9) The Director shall, on a request being made of him or her by a person who intends to appoint a co-decision-maker or a person who is proposed as a co-decision-maker, or both, provide information to the person requesting with regard to making and entering into the co-decision-making agreement.

(10) In this section, “immediate family member” means—

(a) a spouse, civil partner, or cohabitant,

(b) a child, step-child, son-in-law or daughter-in-law,

(c) a parent, step-parent, mother-in-law or father-in-law,

(d) a brother, sister, step-brother, step-sister, brother-in-law or sister-in-law,

(e) a grandparent or grandchild,

(f) an aunt or uncle, or

(g) a nephew or niece of the relevant person.”.

Amendment No. 26 is one of a number of proposed amendments, mainly technical in nature, to the co-decision-making provisions of the Bill. Substantial amendments were agreed to on the provisions of co-decision-making on Committee Stage in the Dáil. However, further review of the co-decision-making provisions indicated that additional amendments are needed to clarify the intent of the policy and to provide further safeguards regarding co-decision-making appointers. The majority of the amendments are technical in nature and have no policy implications. The technical amendments were advised by the drafter to provide clarity and coherence within the Bill. Where several amendments are being proposed to a section, whether on technical or policy grounds, it was decided substitute the entire section in order to provide a clear picture of how the section would read with all amendments included.

Amendment No. 26 proposes to delete the current section 14 and replace it with amended text. The majority of the proposed amendments to the text of section 14 are technical in nature. The main substantive proposed amendments to the text are as follows: the provisions in regard to the interaction of the various other instruments, such as enduring powers of attorney, with co-decision-making agreements have been removed and will be moved to the new nullity section, as provided for by amendment No. 29; subsection 8 has been amended in order to clarify that, although a person may appoint multiple co-decision-makers in regard to different relevant decisions, he or she may only appoint one co-decision-maker per agreement, which is reasonable and rational; and the provisions regarding the witnessing of a co-decision-making agreement have been tightened. A further safeguard has been inserted that provides that an employee or agent of the co-decision-maker may not be a witness to a co-decision-making agreement. The Bill already provides that at least one of the witnesses is not an immediate family member of the appointer or the co-decision-maker. For clarity, I propose to insert a definition of "immediate family member" to include a spouse, civil partner, cohabitant, child, stepchild, parent, step-parent, grandparent, aunt, uncle, nephew, niece or immediate in-law of the appointer or co-decision-maker. Amendment No. 93 will insert the same definition into section 65 of the Bill in regard to the witnessing of an advance health care directive. This amendment to the definition of "immediate family member" is to provide an additional safeguard so that an independent person must be involved as a witness. This is to reduce the risk of a relevant person being pushed by family members into a co-decision-making agreement against his or her wishes.

Amendment agreed to.

I move amendment No. 27:

In page 25, to delete lines 10 to 41, and in page 26, to delete lines 1 to 31 and substitute the following:

“Persons who are not eligible to be co-decision-makers

15. (1) Subject to subsection (2), a person shall not be eligible for appointment as a co-decision-maker if he or she—

(a) has been convicted of an offence in relation to the person or property of the person who intends to appoint a co-decision-maker, or the person or property of a child of that person,

(b) has been the subject of a safety or barring order in relation to the person who intends to appoint a co-decision-maker or a child of that person,

(c) is an undischarged bankrupt or currently in a debt settlement arrangement or personal insolvency arrangement or has been convicted of an offence involving fraud or dishonesty,

(d) is a person in respect of whom a declaration under section 819 of the Act of 2014 has been made or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act,

(e) is a person who is subject or is deemed to be subject to a disqualification order, within the meaning of Chapter 4 of Part 14 of the Act of 2014, by virtue of that Chapter or any other provisions of that Act,

(f) is the owner, or the registered provider, of a nursing home (whether or not it is a nursing home registered under the Health Act 2007), a mental health facility, or a residential facility for persons with disabilities, in which the person who intends to appoint a co-decision-maker resides, or a person residing with, or an employee or agent of, such owner or registered provider, as the case may be, unless the person is a spouse or civil partner, parent, child or sibling of the person who intends to appoint a co-decision-maker,

(g) has been convicted of an offence under section 127, or

(h) previously acted as co-decision-maker for the person who intends to appoint a co-decision-maker and there was a finding by the court that he or she should no longer act as co-decision-maker for that person.

(2) Paragraphs (1)(c), (d) and (e) shall not apply where the co-decision-making agreement contains only relevant decisions concerning personal welfare.”.

Amendment No. 27 proposes to delete the current section 15 and replace it with amended text. The amendments to the text are technical in nature and bring clarity to the section. They provide for a change of title to the section to "Persons who are not eligible to be co-decision-makers" and the removal of subsections 2, 3 and 4, which deal with circumstances subsequent to the appointment of the co-decision-maker and the validity of the agreement. The provisions in subsections 2, 3 and 4 are to be moved to a new section 17 entitled "Nullity," which pulls together all the provisions relating to the invalidation of a co-decision-making agreement.

Amendment agreed to.

I move amendment No. 28:

In page 26, to delete lines 33 to 40, and in page 27, to delete lines 1 to 33 and substitute the following:

“16. (1) A co-decision-maker shall advise the appointer as regards matters the subject of, or to be the subject of, relevant decisions, and shall share with the appointer the authority to make relevant decisions and may do all things necessary to give effect to the authority vested in him or her.

(2) In exercising his or her functions, a co-decision-maker shall—

(a) advise the appointer by explaining relevant information and considerations relating to a relevant decision,

(b) ascertain the will and preferences of the appointer on a matter the subject of, or to be the subject of, a relevant decision and assist the appointer with communicating them,

(c) assist the appointer to obtain any information or personal records (in this section referred to as “relevant information”) that the appointer is entitled to and that are required to assist in the making of a relevant decision,

(d) assist the appointer to make a relevant decision and to express that decision,

(e) make a relevant decision jointly with the appointer, and

(f) make reasonable efforts to ensure that a relevant decision is implemented as far as practicable.

(3) A co-decision-maker shall not—

(a) attempt to obtain information that is not reasonably required for making a relevant decision, or

(b) use relevant information for a purpose other than in relation to making a relevant decision.

(4) A co-decision-maker shall take reasonable steps to ensure that relevant information—

(a) is kept secure from unauthorised access, use or disclosure, and

(b) is safely disposed of when he or she believes it is no longer required.

(5) A co-decision-maker shall be entitled to be reimbursed out of the assets of the appointer in respect of his or her fair and reasonable costs and expenses which are—

(a) reasonably incurred in performing his or her functions as co-decision-maker,

(b) vouched for in a manner acceptable to the Director, and

(c) included in a report submitted by the co-decision-maker under section 23.

(6) A co-decision-maker shall not be entitled to remuneration for performing his or her functions as co-decision-maker.

(7) A co-decision-maker and any person specified in section 18(3) shall, whether or not the co-decision-making agreement has been registered, notify the Director if, to his or her knowledge, the appointer’s capacity—

(a) improves to the extent that he or she has capacity in relation to the relevant decisions which are the subject of the co-decision-making agreement without the assistance of a co-decision-maker, or

(b) deteriorates to the extent that he or she lacks capacity in relation to the relevant decisions which are the subject of the co-decision-making agreement even with the assistance of a co-decision-maker.

(8) A co-decision-maker—

(a) shall acquiesce in a relevant decision made by the appointer, and

(b) shall not refuse to sign a document referred to in section 20(3), unless it is reasonably foreseeable that the relevant decision will result in harm to the appointer or to another person.

(9) A co-decision-maker shall not have authority to make decisions jointly with a relevant person other than in relation to those specified in respect of him or her in the co-decision-making agreement.

(10) Where an appointer has more than one co-decision-maker, each of the co-decision-makers shall exercise his or her functions in a manner which is not inconsistent with the functions exercisable by another co-decision-maker.”.

Amendment No. 28 proposes to delete the current section 16 and replace it with amended text. The amendments to the text are mainly technical in nature and provide clarity as to the functions of a co-decision-maker. In particular, the new subsection (9) limits the authority of the co-decision-maker to decisions falling within the scope of the co-decision-making agreement.

Amendment agreed to.

Amendments Nos. 29 and 52 are related and may be discussed together.

I move amendment No. 29:

In page 27, to delete lines 34 to 36, and in page 28, to delete lines 1 to 40 and substitute the following:

“Nullity

17. (1) Where an event specified in paragraphs (a) to (c) occurs, a co-decision-making agreement shall, with effect from the date on which the event occurs, be null and void to the extent that it relates to a relevant decision where there is, in respect of the relevant decision—

(a) a decision-making order or a decision-making representation order in relation to the appointer,

(b) an advance healthcare directive made by the appointer and the appointer lacks capacity, or

(c) an enduring power of attorney made by the appointer that has entered into force.

(2) A co-decision-making agreement shall, with effect from the date on which an event specified in paragraphs (a) to (c) occurs or, in the case of an event specified in paragraph (d), at the expiry of the period referred to in that paragraph, and unless it provides otherwise, be null and void where the co-decision-maker is the spouse of the appointer and subsequently—

(a) the marriage is annulled or dissolved either—

(i) under the law of the State, or

(ii) under the law of another state and is, by reason of that annulment or dissolution, not or no longer a subsisting valid marriage under the law of the State,

(b) either a decree of judicial separation is granted to either spouse by a court in the State or any decree is so granted by a court outside the State and is recognised in the State as having like effect,

(c) a written agreement to separate is entered into between the spouses, or

(d) subject to section 2(2), the spouses separate and cease to cohabit for a continuous period of 12 months.

(3) A co-decision-making agreement shall, with effect from the date on which an event specified in paragraph (a) or (b) occurs or, in the case of an event specified in paragraph (c), at the expiry of the period referred to in that paragraph, and unless it provides otherwise, be null and void where the co-decision-maker is the civil partner of the appointer and subsequently—

(a) the civil partnership is dissolved (other than where the dissolution occurs by virtue of the parties to that civil partnership marrying each other),

(b) a written agreement to separate is entered into between the civil partners, or

(c) subject to section 2(2), the civil partners separate and cease to cohabit for a continuous period of 12 months.

(4) Subject to section 2(2), a co-decision-making agreement shall, at the expiry of the period referred to in this subsection, and unless it provides otherwise, be null and void where the co-decision-maker is the cohabitant of the appointer and subsequently the cohabitants separate and cease to cohabit for a continuous period of 12 months.

(5) To the extent that a co-decision-making agreement includes a matter referred to in section 14(4), it shall be null and void.

(6) Subject to subsection (7), where, subsequent to the appointment of a co-decision-maker—

(a) the co-decision-maker is convicted of an offence in relation to the person or property of the appointer or the person or property of a child of the appointer,

(b) a safety or barring order is made against the co-decision-maker in relation to the appointer or a child of the appointer,

(c) the co-decision-maker becomes an undischarged bankrupt or subject to a debt settlement arrangement or personal insolvency arrangement which is current or is convicted of an offence involving fraud or dishonesty,

(d) the co-decision-maker becomes a person in respect of whom a declaration has been made under section 819 of the Act of 2014,

(e) the co-decision-maker becomes a person who is subject or is deemed to be subject to a disqualification order within the meaning of Chapter 4 of Part 14 of the Act of 2014 by virtue of that Chapter,

(f) the co-decision-maker becomes the owner, or the registered provider, of a nursing home (whether or not it is a nursing home registered under the Health Act 2007), a mental health facility, or residential facility for persons with disabilities, in which the appointer resides, or a person residing with, or an employee or agent of, such owner or registered provider, as the case may be, unless the person is a spouse or civil partner, parent, child or sibling of the appointer,

(g) the co-decision-maker is convicted of an offence under section 127,

(h) the co-decision-maker—

(i) enters into a decision-making assistance agreement as a relevant person,

(ii) enters into a co-decision-making agreement as a relevant person,

(iii) has an enduring power of attorney registered in respect of himself or herself,

or

(iv) becomes the subject of an order under Part 5,

or

(i) the court finds that the co-decision-maker shall no longer act as co-decision-maker for the appointer, the co-decision-making agreement concerned shall be null and void with effect from the date on which the co-decision-maker falls within any of paragraphs (a) to (i).

(7) A co-decision-making agreement shall not be null and void pursuant to paragraphs (6)(c), (d) and (e) to the extent that it contains relevant decisions on personal welfare.

(8) Where a co-decision-making agreement which stands registered becomes null and void, the appointer or the co-decision-maker under that agreement shall notify the Director of same.

(9) Where a co-decision-making agreement which stands registered becomes null and void, or a relevant decision which is the subject of a co-decision-making agreement becomes null and void, and a person, without knowledge of the nullity, deals with the appointer and the co-decision-maker, the transaction between them shall, in favour of that person, be as valid as if the co-decision-making agreement had been in force.

(10) A co-decision-maker or appointer who, without knowledge of the nullity of a co-decision-making agreement or of a relevant decision which is the subject of a co-decision-making agreement, as the case may be, acts in accordance with or pursuant to that relevant decision, shall not incur liability as a result of so acting.”.

Amendments Nos. 29 and 52 pull together the provisions dealing with the circumstances in which a co-decision-making agreement may become null and void. Amendment No. 29 proposes the deletion of the current section 17 and the insertion of amended text. The amended section 17, which is now to be entitled "Nullity," pulls together into one coherent section the various provisions relating to nullity and invalidation of a co-decision-making agreement that are currently dotted throughout Part 4 of the Bill. It also reinstates the provisions of subsections 18(8) to (10) of the original Bill in regard to invalidation due to divorce, separation, etc., of the relevant person and the co-decision-maker that were inadvertently omitted in the revised text inserted on Committee Stage.

Amendment No. 52 inserts a new section entitled "Role of the Director where nullity occurs." It sets out the procedures the director must follow once he or she receives notice of the nullity of a co-decision-making agreement or a relevant decision.

Amendment agreed to.

Amendments Nos. 30 to 33, inclusive, are related and may be discussed together.

I move amendment No. 30:

In page 29, to delete lines 2 to 38, and in page 30, to delete lines 1 to 20 and substitute the following:

“18. (1) A co-decision-making agreement shall not enter into force until it has been registered in accordance with section 19.

(2) An application to register a co-decision-making agreement shall be made not later than 5 weeks from the date the agreement was signed, in such form and accompanied by such fee as shall be prescribed by regulations made under section 27 and, subject to section 14(6), shall be signed by both the appointer and the co-decision-maker (in this section referred to as “the applicants”).

(3) The applicants shall, at the same time as making an application to register a co-decision-making agreement under this section, jointly give notice, in such form as shall be prescribed by regulations made under section 27, of the application and give a copy of the co-decision-making agreement to the following persons:

(a) the spouse or civil partner (if any) of the appointer;

(b) the cohabitant (if any) of the appointer;

(c) any children of the appointer who have attained the age of 18 years;

(d) any decision-making assistant for the appointer;

(e) any decision-making representative for the appointer;

(f) any attorney for the appointer;

(g) any designated healthcare representative for the appointer;

(h) any co-decision-maker of the appointer under another co-decision-making agreement.

(4) An application under subsection (2) shall be accompanied by the following:

(a) the co-decision-making agreement;

(b) a statement by the appointer that he or she—

(i) understands the implications of entering into the co-decision-making agreement and has read and understands the information contained therein, or has had such information explained to him or her,

(ii) wishes to enter into the co-decision-making agreement with the co-decision-maker,

(iii) is aware that he or she may, with the consent of the co-decision-maker, vary the co-decision-making agreement, and

(iv) is aware that he or she may revoke the co-decision-making agreement;

(c) a statement by the co-decision-maker that he or she—

(i) understands the implications of entering into the co-decision-making agreement and has read and understands the information contained therein,

(ii) understands and undertakes to act in accordance with the functions of a co-decision-maker,

(iii) understands and undertakes to act in accordance with the guiding principles,

(iv) understands and undertakes to comply with the reporting obligations under section 23, and

(v) understands the provisions of this Part relating to variation, revocation and nullity of co-decision-making agreements;

(d) a statement as to why the less intrusive measure of a decision-making assistance agreement was not chosen;

(e) details of any existing decision-making assistance agreement, co-decision-making agreement, decision-making order, decision-making representation order, power of attorney (whether an enduring power or otherwise and whether registered or not) or advance healthcare directive in respect of the appointer;

(f) a statement by a registered medical practitioner and a statement by such other healthcare professional of a class as shall be prescribed by regulations made under section 27 that in his or her opinion—

(i) the appointer has capacity to make a decision to enter into the co-decision-making agreement,

(ii) the appointer requires assistance in exercising his or her decision-making in respect of the relevant decisions contained in the co-decision-making agreement, and

(iii) the appointer has capacity to make the relevant decisions specified in the co-decision-making agreement with the assistance of the co-decision-maker;

(g) references, in such form as shall be prescribed by regulations made under section 27, by 2 persons as to the personal character of the co-decision-maker;

(h) details of the notice given pursuant to subsection (3); and (i) the appropriate fee, as prescribed by regulations under section 27.”.

I propose to discuss amendments Nos. 30 to 33, inclusive, together. The proposed amendments are to sections 18 to 21, inclusive, which deal with the various procedures set out for the registration of a co-decision-making agreement.

Amendment No. 30 proposes to delete section 18, "Application to register," and replace it with amended text. Once again, the amendments are technical in nature, with only one significant amendment to subsection 2, which provides for a time limit of five weeks between the date a co-decision-making agreement is signed and the date on which an application is made the director to register the agreement. This is to ensure that all the relevant details in the agreement are current and that the capacity assessments by a registered medical practitioner and another health care professional are still valid.

Amendment No. 31 proposes the deletion of section 19, "Registration of a co-decision-making agreement," and the insertion of amended text. The substantial amendment to this section is the insertion of new subsections 4 and 5, which set out the procedure that will apply where the director refuses to register a co-decision-making agreement. Subsection 4 allows an appointer or co-decision-maker, or both, to appeal to the court the decision of the director not to register a co-decision-making agreement. Subsection 5 sets out the determinations that the court may make in regard to an appeal under subsection 4, including requiring the director to register an agreement. The provisions of subsections 6 to 8, inclusive, have been moved into a new section 20, "Effect and proof of registration," which is provided for by amendment No. 32. This is a technical drafting amendment that pulls together into one section the existing provisions in subsections 19(6), (7) and (8) which relate to the effect of registration.

Amendment No. 33 proposes the deletion of section 20, "Objections to registration", and its substitution with amended text. The amended text provides for technical amendments to the provisions. It also provides for an appeal mechanism to the director's finding that an objection to the registration of a co-decision-making agreement is not well-founded. The new subsection 5 allows a person whose objection has been found by the director not to be well-founded to appeal the registration of the co-decision-making agreement to the court. The new subsection 6 sets out the determinations that the court may make relating to an appeal under subsection 5, including requiring the director to remove the agreement from the register.

Amendment agreed to.

I move amendment No. 31:

In page 30, to delete lines 22 to 39, and in page 31, to delete lines 1 to 30 and substitute the following:

“19. (1) On receipt of an application under section 18, the Director shall review the application and any objections received under section 21 and shall carry out such reasonable enquiries as he or she considers necessary in order to establish whether—

(a) the co-decision-making agreement is in accordance with section 14,

(b) the co-decision-maker is a suitable person within the meaning of section 14(2),

(c) the co-decision-maker is not a person who falls under paragraphs (a) to (h) of section 15(1),

(d) the application is in accordance with section 18 (or section 24 in the case of an application to register a varied co-decision-making agreement),

(e) the co-decision-making agreement is in accordance with the will and preferences of the appointer, and

(f) the appointer understands the implications of having entered into the co-decision-making agreement.

(2) Following the review under subsection (1) and subject to section 21, the Director shall—

(a) where he or she is satisfied that the criteria set out in paragraphs (a) to (f) of subsection (1) are satisfied, register the co-decision-making agreement and notify the applicants of the date on which it was registered, or

(b) where he or she is of the view that one or more of the criteria set out in paragraphs (a) to (f) of subsection (1) are not satisfied, notify the applicants of that view, provide reasons for that view and give the applicants an opportunity, within a reasonable timeframe specified by the Director, to respond.

(3) Following a review of any response submitted by the applicants pursuant to subsection (2)(b) and subject to section 21, the Director shall—

(a) where he or she is satisfied that the criteria set out in paragraphs (a) to (f) of subsection (1) are satisfied, register the co-decision-making agreement and notify the applicants of the date on which it was registered, or

(b) where he or she remains of the view that one or more of the criteria set out in paragraphs (a) to (f) of subsection (1) are not satisfied, refuse to register the co-decision-making agreement concerned and notify the applicants of that fact.

(4) One or both of the applicants whose application to register a co-decision-making agreement is refused may, not later than 21 days after the date of issue of the notification of refusal by the Director, appeal the refusal to the court.

(5) Upon an appeal under subsection (4), the court may—

(a) require the Director to register the co-decision-making agreement concerned,

(b) affirm the decision of the Director, or

(c) make such other order as it considers appropriate.

(6) Following the registration of a co-decision-making agreement, the Director shall send an authenticated copy of the agreement to the applicants.

(7) A document purporting to be a copy of a co-decision-making agreement that has been authenticated by the Director shall be evidence of the contents of the agreement and the date upon which it was registered.”.

Amendment agreed to.

I move amendment No. 32:

In page 31, between lines 30 and 31, to insert the following:

“Effect and proof of registration

20. (1) A relevant decision which is made within the scope of a registered co-decision-making agreement shall not be challenged on the grounds that the appointer did not have the capacity to make the decision.

(2) Where a co-decision-making agreement stands registered, a relevant decision made otherwise than jointly by the appointer and the co-decision-maker is null and void.

(3) (a) Subject to paragraph (b), where a relevant decision requires the signing of any document, the relevant decision is null and void unless both the appointer and the co-decision-maker sign the document.

(b) Where the appointer is unable to make his or her signature, a document may be signed on the appointer’s behalf by a person who has attained the age of 18 years and who is not the co-decision-maker if the appointer is present and directs that the document be signed on his or her behalf by that person.”.

Amendment agreed to.

I move amendment No. 33:

In page 31, to delete lines 32 to 41, and in page 32, to delete lines 1 to 23 and substitute the following:

“21. (1) Any of the persons referred to in section 18(3) may, not later than 5 weeks from the date on which notice is given in accordance with that provision, notify the Director that he or she objects to the proposed registration.

(2) An objection shall be in such form and shall be accompanied by such fee as shall be prescribed by regulations made under section 27 and may be made on one or more of the following grounds:

(a) that the co-decision-making agreement was not signed or witnessed in accordance with section 14;

(b) that the appointer lacks capacity to make a decision to enter into the co-decision-making agreement;

(c) that the appointer has capacity in respect of the relevant decisions which are the subject of the co-decision-making agreement without the assistance of a co-decision-maker;

(d) that the appointer lacks capacity in respect of the relevant decisions which are the subject of the co-decision-making agreement even with the assistance of a co-decision-maker;

(e) that entry into the co-decision-making agreement is not in accordance with the will and preferences of the appointer;

(f) that the co-decision-maker is not a suitable person within the meaning of section 14(2) or falls under paragraphs (a) to (h) of section 15(1);

(g) that fraud, coercion or undue influence was employed to induce the appointer to enter into the co-decision-making agreement.

(3) Where the Director receives an objection in accordance with subsection (2), he or she shall—

(a) review the objection,

(b) consult with the appointer and co-decision-maker and give them a reasonable opportunity to respond to the objection, and

(c) consult with such other persons as he or she considers relevant,

and shall—

(i) where he or she is of the view that the objection is not well founded, notify the person who made the objection of his or her view, provide reasons for that view and proceed, subject to section 19(1), to register the co-decision-making agreement concerned, or

(ii) where he or she is of the view that the objection is well founded, notify the person who made the objection of his or her view and make an application to the court for a determination as to whether or not the co-decision-making agreement concerned should be registered.

(4) The court, pursuant to an application made to it under subsection (3)(ii), may—

(a) require the Director to register the co-decision-making agreement,

(b) declare that the co-decision-making agreement concerned should not be registered, or

(c) make such other declaration or order as it considers appropriate.

(5) A person who makes an objection under subsection (1) may, not later than 21 days after the date of issue of the notification by the Director under subsection (3)(i), appeal a decision to register the co-decision-making agreement concerned to the court.

(6) Upon appeal under subsection (5), the court may—

(a) require the Director to remove the co-decision-making agreement concerned from the Register,

(b) affirm the decision of the Director, or

(c) make such other declaration or order as it considers appropriate.”.

Amendment agreed to.

I move amendment No. 34:

In page 32, lines 25 and 26, to delete all words from and including “(1) The” in line 25 down to and including line 26 and substitute the following:

“(1) The Director shall establish and maintain a Register (in this Part referred to as “the Register”) of co-decision-making agreements.”.

Amendment agreed to.

I move amendment No. 35:

In page 32, line 27, to delete “deems” and substitute “considers”.

Amendment agreed to.

I move amendment No. 36:

In page 32, line 31, to delete “a person” and substitute “any person”.

Amendment agreed to.

I move amendment No. 37:

In page 33, to delete lines 1 and 2 and substitute the following:

“(5) The Director shall keep a record of any body or person that has inspected the Register or received an authenticated copy of a co-decision-making agreement, or part thereof, from him or her.”.

Amendment agreed to.

Amendments Nos. 38 and 39 are related and may be discussed together by agreement.

I move amendment No. 38:

In page 33, to delete lines 4 to 40 and substitute the following:

“22. (1) The Director shall conduct a review of each co-decision-making agreement on the Register not earlier than 3 months before and not later than 3 months after the first anniversary of the date of registration of the agreement and thereafter at intervals not exceeding 3 years.

(2) In conducting a review under this section, the Director shall carry out such reasonable enquiries, including, in particular, consulting with the appointer and co-decision-maker as well as any special visitor or general visitor who has had contact with the appointer or co-decision-maker, as he or she considers necessary to determine whether—

(a) paragraphs (e) and (f) of section 19(1) continue to apply,

(b) the co-decision-making agreement falls within section 17,

(c) the co-decision-maker has effectively performed and continues to be likely to effectively perform his or her functions as co-decision-maker,

(d) the co-decision-maker has complied with the requirements under this Act that are relevant to him or her, and

(e) the matters provided for in subparagraphs (ii) and (iii) of section 18(4)(f) continue to apply.

(3) In order to determine whether the matters provided for in subparagraphs (ii) and (iii) of section 18(4)(f) continue to apply, the Director shall require statements to that effect to be submitted to him or her by—

(a) the same registered medical practitioner who provided the original statement under section 18(4)(f) or, where that practitioner is not reasonably available, another registered medical practitioner, and

(b) the same healthcare professional who provided the original statement under section 18(4)(f) or, where that professional is not reasonably available, another healthcare professional of the class prescribed by regulations made under section 27.

(4) Where, following a review under subsection (1), the Director is of the view that one or more of the matters in paragraphs (a) to (e) of subsection (2) does not, or no longer continues to, apply, he or she shall notify the co-decision-maker and the appointer of that view, provide reasons for same and give the appointer and the co-decision-maker an opportunity to respond within a time period specified by the Director.

(5) Where, at the expiry of the period for response specified under subsection (4) and following a review of any response submitted by the appointer or the co-decision-maker or both pursuant to that subsection, the Director remains of the view that one or more of the matters in paragraphs (a) to (e) of subsection (2) does not, or no longer continues to, apply, he or she shall notify the appointer and the co-decision-maker of that view and make an application to the court for a determination on the matter.

(6) Where, pursuant to an application to it under subsection (5), the court determines that one or more of the criteria in paragraphs (a) to (e) of subsection (2) does not, or no longer continues to, apply, it may determine that the co-decision-maker shall no longer act as co-decision-maker for the appointer concerned.”.

The proposed amendments to sections 22 and 23 set out the review and reporting procedures for co-decision-making agreements. Amendment No. 38 proposes the deletion of section 22, "Review of co-decision-making agreements," and the substitution of amended text. Section 22 provides for the director to review co-decision-making agreements at regular intervals. The majority of the amendments to the text are technical in nature to provide clarity.

Two substantive changes are contained in the amended text. The first substantive change increases the interval at which the director must review a co-decision-making agreement from 12 months to three years. The review will now take place every three years because an annual review would be onerous for a relevant person and for a co-decision-maker. It would introduce unnecessary uncertainty for the many people involved in such agreements that are currently working well. I am aware that there will be problems with some co-decision-making agreements and for some co-decision-makers. I have chosen to address problem situations not by imposing additional requirements on all but rather by proposing to strengthen the provisions that will operate when problems arise. Where an agreement is not working well for either the appointer or the co-decision-maker, other provisions allow the agreement to be varied or revoked. The director will continue to review reports from co-decision-makers relating to the performance of their functions annually. The reporting provisions and the proposed strengthening of the complaints system, as proposed in amendment No. 42, provide adequate safeguards to alert the director to problems with an agreement. The director will still have the discretion to review an agreement at intervals of less than three years if he or she believes it necessary. Amendment No. 53 will also provide for offences that can be incurred by the co-decision-maker if he or she subjects the relevant person to fraud, coercion or undue influence.

The second substantive change to the text of section 22 provides for the insertion of a new subsection 6. Subsection 5 allows the director to apply to the court if, following a review of a co-decision-making agreement, he or she is of the view that certain criteria that applied at registration of the agreement no longer apply. The new subsection 6 allows the court, if it is satisfied that the given criteria no longer apply, such as that the co-decision-maker has not effectively performed the functions of a co-decision-maker, to determine that the co-decision-maker may no longer act as a co-decision-maker for the appointer.

Amendment No. 39 proposes the deletion of section 23 and its substitution with amended text. The amendments to the text are mainly technical and clarify the intent of the policy underpinning this section. Section 23 deals with the reports that a co-decision-maker has to submit to the director. The amended text provides for the director to notify the appointer as well as the co-decision-maker if a report is incomplete or if it has not been submitted at all. A new subsection 5 clarifies that the court, on application to it by the director, may determine that the co-decision-maker who has not fulfilled his or her reporting obligations may no longer act as a co-decision-maker for the appointer concerned.

Amendment agreed to.

I move amendment No. 39:

In page 34, to delete lines 2 to 24 and substitute the following:

“23. (1) A co-decision-maker shall, within 12 months after registration of the co-decision-making agreement appointing him or her, and thereafter at intervals of not more than 12 months, prepare and submit to the Director a report in writing as to the performance of his or her functions as such co-decision-maker during the relevant period.

(2) Every report submitted to the Director pursuant to this section shall be approved by the appointer and shall be in such form as shall be prescribed by regulations made under section 27 and shall include details of all transactions relating to the appointer’s finances which are within the scope of the co-decision-making agreement and details of all costs and expenses paid to and claimed by the co-decision-maker in the relevant period together with such other matters as are prescribed.

(3) Where a co-decision-maker fails to submit a report in accordance with this section or submits an incomplete report, the Director shall notify the appointer and the co-decision-maker concerned of that failure or incompleteness and give the co-decision-maker such period of time as is specified in the notice to comply or submit a complete report.

(4) Where a co-decision-maker fails to comply with a notification under subsection (3), the Director may make an application to the court for a determination as to whether the co-decision-maker should continue as co-decision-maker for the appointer.

(5) Pursuant to an application to it under subsection (4), the court may determine that a co-decision-maker who has not complied with this section shall no longer act as co-decision-maker for the appointer concerned.

(6) In this section “relevant period” means the period of time to which the report relates which shall be the period of time between the date of registration of the co-decision-making agreement or the date of submission of the previous report, as the case may be, and the date immediately preceding the date of submission of the report concerned.”.

Amendment agreed to.

I move amendment No. 40:

In page 34, to delete lines 26 to 41, and in page 35, to delete lines 1 to 24 and substitute the following:

“24. (1) The terms of a registered co-decision-making agreement may be varied by agreement between the appointer and the co-decision-maker.

(2) Subject to section 14(6), a varied co-decision-making agreement shall include the signature of the appointer and the co-decision-maker (in this section referred to as “the applicants”) and shall be witnessed in accordance with section 14(7).

(3) An application to register a varied co-decision-making agreement shall be made in such form and accompanied by such fee as shall be prescribed by regulations made under section 27 and shall be signed by both the appointer and the co-decision-maker.

(4) The applicants shall, at the same time as making an application to register a varied co-decision-making agreement, give notice, in such form as shall be prescribed by regulations made under section 27, to the persons specified in section 18(3) and the application shall be accompanied by the following:

(a) the varied co-decision-making agreement;

(b) a statement by the applicants outlining the variation and why it is considered necessary;

(c) a statement by a registered medical practitioner and a statement by such other healthcare professional as shall be prescribed by regulations made under section 27 that in his or her opinion—

(i) the appointer has capacity to vary the co-decision-making agreement,

(ii) the appointer requires assistance in exercising his or her decision-making in respect of the relevant decisions contained in the varied co-decision-making agreement, and

(iii) the appointer has capacity to make the decision or decisions specified in the varied co-decision-making agreement with the assistance of the co-decision-maker concerned;

(d) details of the notice given pursuant to this subsection;

(e) any change to the information provided pursuant to section 18(4)(e) in the application to register the co-decision-making agreement;

(f) the appropriate fee, as prescribed by regulations made under section 27.

(5) Sections 19 to 23 and sections 25 to 30 shall apply to a varied co-decision-making agreement as they apply to a co-decision-making agreement with the modification that a reference to “co-decision-making agreement” in those sections shall be read as if “varied co-decision-making agreement” were substituted for “co-decision-making agreement” and any other necessary modifications.

(6) An application to register a varied co-decision-making agreement may not be made less than 6 months from the date of registration of the co-decision-making agreement which it varies, and thereafter at intervals of not less than 12 months, unless a shorter period is agreed by the Director.

(7) Upon registration of a varied co-decision-making agreement, the Director shall remove from the Register the co-decision-making agreement which the varied co-decision-making agreement replaces.

(8) A varied co-decision-making agreement shall not enter into force until it has been registered.”.

Amendment No. 40 proposes the deletion of section 24 and its substitution with amended text. Again, the amendments to the text are mainly technical in nature and add clarity to the provisions. An amendment to subsection 6 restricts the number of times a co-decision-making agreement can be amended in a 12-month period to one. This is deemed prudent from an administrative and operational prospective. The director has the discretion to allow further variation of an agreement within a 12-month period if deemed necessary.

I am agreeing on the basis that we can disagree in future. The Minister of State is making an administrative decision to provide for the most beneficial administrative way to administer the agreement without it being tampered with on a daily or weekly basis. We are going to have to observe this in practice to ensure all stakeholders can tie in to reviewing it in future. I suppose all legislation is for review on a daily level. We will support the amendment, but with some caution. I imagine the Minister of State understands where I am coming from in that respect.

There are certain outcomes we do not want. When an agreement is reached, we must assume that it is with someone who is trusted on both sides and that the person involved has capacity in respect of the person who is assisting. We do not want a scenario whereby different obligations or circumstances arise on a weekly basis. I believe this will focus the minds of both parties on the essentials. This is about the essentials more than anything else, including property, money, health care and so on. These are the essential elements of how people live. We all change our minds on the other aspects on a regular basis. It is a question of focusing the mind and ensuring that we do not have someone who is constantly changing his or her mind. That would be unfair on both parties.

It is an unusual discussion because the spirit of the Bill relates to a human rights ethos. The administration of human rights with an administrative function is somewhat complex. It could pose some challenges for us in the future. Anyway, no legislation is perfect.

We will support what the Minister of State is proposing. However, it is on the basis that we would be prepared to learn as we proceed. We must ensure we do not deny a human right that is superior to an administrative understanding in the legislation. That understanding may limit certain rights to one per year or two per year and so forth on the basis that bureaucratically it makes more sense and it is preferable to changing the arrangements from week to week or from day to day if there is a dispute somewhere. At the end of the day, it is about legislation that is focused on the service user, the patient and the citizen. I have a concern that we could be limiting the discretion around human rights by imposing an administrative understanding. Anyway, we will support the legislation, because this is new for us. I hope that the spirit in which we approach the legislation will be reciprocated in future if it does not work.

That is why I have remarked on that.

This is a Bill that has been widely discussed. The number of amendments tabled shows that remarks were listened to. That is the spirit of the Bill. Unfortunately, none of us has a crystal ball, and we cannot be certain what will happen in the future, but I am sure if difficulties arise there will no reluctance to intervene in terms of legislation.

I welcome the comments of the Minister of State. It is an important signal to send out. There is a degree of anxiety around this area of the Bill.

The Deputy has spoken twice already.

In the spirit in which we are all having a big love-in today, I am sure the Minister of State does not-----

I will observe the rules.

Amendment agreed to.

I move amendment No. 41:

In page 35, to delete lines 26 to 36 and substitute the following:

25. (1) A co-decision-making agreement, whether registered or not, may be revoked in whole or in part at any time by the appointer or the co-decision-maker, or both.

(2) A revocation or revocation in part of a co-decision-making agreement shall be in writing and shall be in such form as shall be prescribed by regulations made under section 27.

(3) Subject to section 14(6)

, a revocation or a revocation in part of a co-decision-making agreement shall be signed by the person or persons making the revocation and, in the case of a revocation by the appointer, his or her signature shall be acknowledged by 2 witnesses and section 14(7)

shall apply with the necessary modifications.

(4) Where a revocation or revocation in part is made after the co-decision-making agreement concerned has been registered, the person making the revocation shall notify the Director of the revocation or revocation in part, as the case may be.

(5) Upon receipt of a notification under subsection (4)the Director shall—

(a)where the revocation concerns the whole of the co-decision-making agreement concerned, remove the co-decision-making agreement to which the revocation relates from the Register, and

(b) where the revocation is a revocation in part, identify on the Register the extent of the revocation, and in either case notify the persons specified in section 18(3)

of the fact of the revocation or revocation in part, as the case may be.

(6) In this section a “revocation in part” means a revocation (whether by the co-decision-maker or the appointer or both), whereby the co-decision-maker continues to act as co-decision-maker for the appointer in respect of one or more relevant decisions which are the subject of the co-decision-making agreement.”.

This amendment proposes to delete section 25 and substitute it with amended text. The amended text clarifies that a co-decision-making agreement may be revoked whether it is registered. It also allows an agreement to be revoked in part. Where a registered agreement is being revoked in part a director must identify on the register the extent of the revocation. The new subsection (6) clarifies that "revocation in part" means a revocation whereby the co-decision-maker continues to act as a co-decision-maker for the appointer for more than one relevant decision. Again, it provides the type of flexibility that is required.

Amendment agreed to.

I move amendment No. 42:

In page 35, to delete lines 38 and 39, and in page 36, to delete lines 1 to 27 and substitute the following:

26. (1)A person may make a complaint in writing to the Director concerning one or more of the following matters:

(a) the conduct or proposed conduct of a co-decision-maker, including whether he or she has acted, is acting, or is proposing to act outside the scope of his or her functions;

(b) the suitability of a co-decision-maker in relation to an appointer;

(c) a co-decision-making agreement not being in accordance with the will and preferences of an appointer;

(d) that the appointer did not, at the time of entry into the co-decision-making agreement, have capacity to make a decision to enter the agreement;

(e) that fraud, coercion or undue pressure was used to induce the appointer to enter into the co-decision-making agreement;

(f) that the appointer has capacity in respect of one or more of the decisions which are the subject of the co-decision-making agreement without the assistance of a co-decision-maker;

(g) that the appointer no longer has capacity in respect of one or more than one of the decisions which are the subject of the co-decision-making agreement even with the assistance of the co-decision-maker.

(2) Following the receipt of a complaint under subsection (1), the Director shall carry out an investigation and—

(a) where he or she is of the view that the complaint is well founded, make an application to the court for a determination in relation to any matter specified in the complaint, or

(b) where he or she is of the view that the complaint is not well founded, notify the person who made the complaint of that view and provide reasons for same.

(3) The Director may, notwithstanding that no complaint has been received, on his or her own initiative carry out an investigation and make an application to court for a determination in relation to any matter specified in subsection (1).

(4) The court may—

(a) pursuant to an application to it under subsection (2) or (3), or

(b) pursuant to an application by an interested party whose complaint under this section has been rejected by the Director, make a determination in relation to a matter specified in subsection (1) which was the subject of a complaint to the Director and may, if it considers it appropriate, determine that a co-decision-maker shall no longer act as such in relation to the appointer concerned.”.

The amendment proposes the deletion of section 26 and the substitution of amended text. The amended text sets out what a director has to do if he or she, after carrying out an investigation into a complaint, is of the view that the complaint is not well founded. The person whose complaint the director has found to be unfounded may apply to the court to make a determination in regard to the complaint.

Amendment agreed to.

I move amendment No. 43:

In page 36, lines 29 and 30, to delete all words from and including “The” in line 29 down to and including line 30 and substitute the following:

“The Minister, having regard to the requirements of this Part, shall make regulations regarding co-decision-making agreements, including—”.

Amendment agreed to.

I move amendment No. 44:

In page 36, line 32, after “application” to insert “under sections 18(2)and 24(3)”.

Amendment agreed to.

I move amendment No. 45:

In page 36, line 34, after “notice” to insert “under sections 18(3)and 24(4)”.

Amendment agreed to.

I move amendment No. 46:

In page 36, line 36, after “objection” to insert “under section 21”.

Amendment agreed to.

I move amendment No. 47:

In page 36, line 38, after “report” to insert “under section 23”.

Amendment agreed to.

I move amendment No. 48:

In page 37, line 1, after “revocation” to insert “under section 25”.

Amendment agreed to.

I move amendment No. 49:

In page 37, line 2, after “references” to insert “under section 18(4)(g)”.

Amendment agreed to.

I move amendment No. 50:

In page 37, line 4, after “persons” to insert “under section 21(3)”.

Amendment agreed to.

I move amendment No. 51:

In page 37, to delete lines 15 to 23 and substitute the following:

“28. Where the court is determining whether a co-decision-maker should continue to act as co-decision-maker for an appointer, it shall have regard to all of the circumstances of the case, including in particular—

(a) the capacity of the appointer,

(b) the appointer’s willingness to continue to participate in the co-decision-making agreement concerned,

(c) the suitability of the co-decision-maker,

(d) the performance by the co-decision-maker of his or her functions, and

(e) the views of the Director.”.

The amendment proposes the substitution of section 51 with amended text. The amendments to the text are purely technical and simplify the text to provide clarity. The amendments have no policy implications.

Amendment agreed to.

I move amendment No. 52:

In page 37, between lines 23 and 24, to insert the following:

“Role of Director where nullity occurs

29. On receipt of notice of the nullity of a co-decision-making agreement or of a relevant decision which is the subject of a co-decision-making agreement, the Director shall—

(a)remove the co-decision-making agreement from the Register, or note on the Register the extent of the nullity, as the case may be, and

(b)notify the persons referred to in section 18(3) of the nullity and any removal of the agreement from the Register.”.

Amendment agreed to.

I move amendment No. 53:

In page 37, between lines 23 and 24, to insert the following:

Offences

30. (1) A person who uses fraud, coercion or undue influence to force another person to make, vary or revoke a co-decision-making agreement shall be guilty of an offence and shall be liable—

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both, or

(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years, or both.

(2) A person who, in an application for registration of a co-decision-making agreement, or in connection with such an application, makes a statement which he or she knows to

be false in a material particular commits an offence and shall be liable —

(a) on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or both, or

(b) on conviction on indictment, to a fine not exceeding €15,000 or imprisonment fora term not exceeding 2 years, or both.

(3) The reference in subsection (1) to coercion or undue influence includes any case where a person’s access to, or continued stay in, a nursing home (whether or not it is a

nursing home registered under the Health Act 2007), a mental health facility, or a residential facility for persons with disabilities, is contingent (whether in whole or in part) on the person having to, or being led to believe that he or she has to, make, vary or revoke a co-decision-making agreement.”.

The amendment inserts a necessary new section dealing with offences. This section mirrors section 71 in Part 9 in regard to advance health care directives. A person who uses fraud, coercion or undue influence to force another person to make, vary or revoke a co-decision-making agreement will be guilty of an offence. A person who makes a statement in connection with the registration of a co-decision-making agreement which he or she knows to false will also be guilty of an offence. This is an important protection for a relevant person. It will help to ensure that co-decision-makers are dissuaded from defrauding or exploiting vulnerable people with capacity difficulties.

Amendment agreed to.

Amendments No. 54 and 55 have been ruled out of order because they involve a potential charge on the Exchequer.

Amendments Nos. 54 and 55 not moved.

I move amendment No. 56:

In page 41, line 10, to delete “property or affairs” and substitute “property and affairs”.

Amendment agreed to.

I move amendment No. 57:

In page 41, line 18, to delete “Part 5” and substitute “Part 4”.

Amendment agreed to.

Amendment No. 58 has been ruled out of order because it involves a potential charge on the Exchequer.

Amendment No. 58 not moved.

I move amendment No. 59:

In page 42, line 3, to delete “Part 5” and substitute “Part 4”.

Amendment agreed to.

I move amendment No. 60:

In page 42, line 12, after “a” where it firstly occurs to insert “suitable”.

Amendment agreed to.

I move amendment No. 61:

In page 43, line 4, to delete “section 82(1)” and substitute “section 82”.

Amendment agreed to.

I move amendment No. 62:

In page 44, lines 19 to 22, to delete all words from and including “(1) The” in line 19 down to and including line 22.

Amendment agreed to.

Amendment No. 63 is in the name of Deputy Mac Lochlainn, who is not here.

Amendment No. 63 not moved.

I move amendment No. 64:

In page 45, line 41, to delete “paragraphs (a) to (f)” and substitute “paragraphs (a) to (h)”.

Amendment agreed to.

I move amendment No. 65:

In page 48, lines 9 and 10, to delete “might be reasonably be expected” and substitute “might reasonably be expected”.

Amendment agreed to.

Amendments Nos. 66 to 69, inclusive, 78, 79 and 142 are related and may be discussed together. Deputy Mac Lochlainn is not present.

Amendment No. 66 not moved.

I move amendment No. 67:

In page 50, line 9, to delete “or” where it secondly occurs.

Amendment agreed to.

I move amendment No. 68:

In page 50, to delete lines 10 and 11 and substitute the following:

“(c) administers a medication, which is not necessary for a medically identified condition, with the intention of controlling or modifying the relevant person’s behaviour or ensuring that he or she is compliant or not capable of resistance, or

(d) authorises another person to do any of the things referred to in paragraphs (a) to (c).”.

Amendment agreed to.
Amendment No. 69 not moved.

I move amendment No. 70:

In page 51, to delete lines 24 to 28 and substitute the following:

“(ii) make an order varying or discharging, as appropriate, a decision-making order or decision-making representation order of which the relevant person is the subject,”.

Amendment agreed to.

Amendment No. 71 is out of order as it involves a potential cost on the Exchequer.

Amendment No. 71 not moved.

Sorry, Acting Chairman, perhaps I have the wrong list of amendment groupings. I want to speak on amendment No. 142, if that is in order.

Deputy Mac Lochlainn did not move amendment No. 66 and amendment No. 142 is in that group.

Amendment No. 142 is particularly important. It deals with the question of outlawing chemical restraint. The amendment states:

Nothing in this Act shall be construed as authorising any person to administer to a relevant person any medication for the purpose of controlling or modifying the relevant person’s behaviour or to ensure that a relevant person is compliant and not capable of resistance when no medically identified condition is being treated; where the treatment is not necessary for the condition; or the intended effect of the medication is to sedate the relevant person for convenience or for disciplinary purposes ... Notwithstanding [the above], the appropriate use of drugs to reduce symptoms in the treatment of a medical condition does not constitute chemical restraint but the administration of such medication should be clearly documented on the relevant person’s file and the reasons for the administration of such medication specified.

Article 3 of the European Convention on Human Rights applies specifically to chemical restraint, and I will repeat it. It states: "No one shall be subjected to torture or to inhuman or degrading treatment." This right is an absolute right, with no exceptions, as distinct from the exceptions present in article 7. Chemical restraint is inhuman and degrading, and should be prohibited. Medication should only be used if there is a medical or therapeutic necessity and not for any other purpose. I understand the Law Society submits that this definition should be set out in the Bill.

I draw the attention of the Minister of State to the Department of Health policy document, Towards a Restraint Free Environment in Nursing. It states:

Chemical restraint is the intentional use of medication to control or modify a person's behaviour to ensure a person is compliant or not capable of resistance, where no medically identified condition is being treated; where the treatment is not necessary for that condition; or the intended effect of the drug is to sedate the person or for convenience or for disciplinary purposes.

I understand that when the Minister of State replied to Deputy Mac Lochlainn on an earlier amendment, she said she was prepared to introduce amendments.

I welcome what she has done and I support the legislation, and obviously as a Government Deputy I will vote for it, but this amendment is critical because it goes to the heart of abuse of elderly people particularly, and people with dementia or other medical conditions, who are unable to speak for themselves and who may display very challenging behaviour. The use of chemical restraints solely for the purposes of the convenience of the staff or other non-medical reasons should be outlawed by the legislation, where chemical restraint is used as a first resort, including where people with dementia are admitted to acute hospitals, and is not confined to situations where there must be a clear medical reason where medication must be required The distinction between the administration of medication for therapeutic reasons and the administration of medication simply to control behaviour must be clearly understood and provided for. I appreciate this is Report Stage and the Minister of State will bring the Bill through the Seanad.

I note the draft guide to professional conduct and ethics for registered medical practitioners at paragraph 18.2 provides, "If patients lack capacity to make a decision about treatment or examination, you may use appropriate physical or chemical restraint". I find this absolutely shocking and unacceptable. This applies to people who lack capacity, and it states a medical practitioner can use physical and chemical restraint. Chemical restraint is inhumane and degrading treatment and should never be used. The drafters of the guide to professional conduct and ethics for registered medical practitioners do not seem to understand the issue.

There is clear evidence, internationally, on the abuse of patients by using chemical restraint and behaviour-calming drugs and I direct the Minister of State to a recent article in the British Medical Journal by the University of Michigan medical school and Johns Hopkins University, which reviewed two decades worth of research to reach conclusions on antipsychotic and antidepressant drugs and on non-drug approaches which help care givers address behavioural issues in dementia cases.

I am aware of and acknowledge the interest and concerns of the Minister of State in this area. I urge her in her reply to give serious consideration to the amendment. I accept she may not be in a position to accept the amendment today, but I ask her to look at it again seriously for the Seanad. At the end of the day, it is about training staff and caregivers and recognising the fundamental human rights of people who can never speak for themselves because of the medical condition from which they suffer, because of advanced dementia or other medical problems. It is never acceptable that they would be drugged to facilitate understaffed nursing homes, which happens regularly. This goes to the very heart of the quality of care for people in institutions who cannot speak for themselves. Now is the time and this is the opportunity for us to fundamentally state the abuse of elderly people or citizens by using antipsychotic drugs for the sole purpose of facilitating staff, and there is understaffing in many of these institutions, is entirely and absolutely unacceptable and is an appalling abuse of the human rights of the people concerned.

I apologise as I understand I missed amendment No. 63. I had to take an urgent call and I ask the Minister of State to consider the principle of the amendment in the Seanad.

I am speaking on amendments Nos. 66 and 69. Amendment No. 66 relates to what Deputy O'Dowd said. The issue of restraint of relevant persons is addressed by a reference to restrictions on decision-making representatives in previous sections of the Bill. We consider it imperative that the provisions permitting restraint of a person by a decision-making representative should be strictly construed and should explicitly require that the decision-making representative acts in a manner consistent with the principles of the Bill. The provisions should only allow restraint where this is the least restrictive measure to prevent harm. We consider that the definition of restraint as provided in previous sections should be extended and we consider it necessary that a specific provision be included in the section dealing with informal decision-making. We have dealt with this, and amendment No. 69 is similar.

I remind Members we must adjourn the debate at 12 noon and if we could get this part finished by then, it would be appreciated.

I will be brief. I support Deputy O'Dowd, who articulated the concerns many of us in the House have, and I know the Minister of State has them also. We should not accept chemical restraint, or make provision or accommodation for chemical restraint. Deputy O'Dowd raised the issue of nursing homes. The Minister of State has been in a facility, which I visited recently, which provides long-term care for people with a learning disability. We were given the example of one individual who was literally sedated for all of the time spent in a previous institution and now receives absolutely no medication whatsoever all because resources, staffing and training have been put in place. My big fear is that making provision for chemical restraint will allow facilities to wallpaper over massive cracks in staffing resources, the capacity and training of staff and the general resources available. In the vast majority of cases these issues can be quite easily addressed by putting in place the proper supports, and because of this I ask the Minister of State to take note of the amendment tabled by Deputy O'Dowd. If it cannot be accepted today, I ask the Minister of State to accept it in the Seanad.

I welcome the spirit of the amendment. I understand the motivation is well-meaning because week after week we see publication after publication from HIQA about the warehousing of people with profound intellectual disabilities. The use of chemical intervention as a consequence of the collapse in supports and budgets in this area is something about which we have grave concerns. We have only one minute left and I want-----

No, we will continue this later.

I appreciate the intention of the legislation is an incremental step to get to a location where we are in a position to ratify the United Nations Convention. When we reconvene, I will read into the record of the Dáil, and it may provide the Minister of State an opportunity to work on this issue, a statement made by the United Nations with respect to how dignity must prevail in this area. As the Minister of State is aware, on Saturday, 10 October, the United Nations special rapporteur on the rights of persons with disabilities made a comprehensive statement specifically on this area, and I hope and anticipate that if the spirit of what we are trying to achieve is to be compatible with the United Nations Convention, we may find a way of working around the language without having to force this to a vote. It is my intention to read into the record of the Dáil a statement on the issue of treatment of people who are institutionalised and chemically restrained and who are part of the closed convention.

This is important legislation and I acknowledge the dedication, commitment and actions of HIQA.

It has shone a light and forced transparency in this area, and both sides of the House should agree its work in this area to protect the most vulnerable people in society should not be hampered and should be supported.

If we had time now I would reply, but Leaders' Questions is about to start and it might be more beneficial if the reply came when we resume, but it is entirely up to the Acting Chairman.

Debate adjourned.