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

I move amendment No. 66:

In page 49, to delete lines 34 to 41, and in page 50, to delete lines 1 to 3 and substitute the following:

“(8) A decision-making representative for a relevant person shall not do an act that is intended to restrain the relevant person unless—

(a) the relevant person lacks capacity in relation to the matter in question or the decision-making representative reasonably believes that the relevant person lacks such capacity,

(b) the decision-making representative reasonably believes that it is necessary to do the act in order to prevent harm to the relevant person or to another person,

(c) the decision-making representative reasonably believes that the act is the least restrictive measure that may be taken in order to prevent harm to the relevant person or to another person, and

(d) the act is a proportionate response to the likelihood of the harm referred to in paragraphs (b) and (c) and to the seriousness of such harm.”.

Before we adjourned, Deputies Colm Keaveney, Pádraig Mac Lochlainn, Fergus O'Dowd and Denis Naughten spoke on their amendments. Amendment No. 66 concerns the circumstances in which restraint can be used or authorised by a decision-making representative. We are in agreement that restraint should be tightly regulated and only used where absolutely necessary. I proposed amendments on Committee Stage which limit the circumstances in which restraint can be used. The situation has to be an exceptional emergency in which there is an imminent risk of serious harm to the relevant person or to another person.

Deputy Mac Lochlainn’s proposal would remove the concept of exceptional emergency circumstances. In the spirit of what we are doing, we all want to get to the same goal, and sometimes ensuring one does not reflect on another can be quite difficult. It would also remove the concept of imminent risk of serious harm. Instead, it proposes a lesser test – the test in the Bill as published – that restraint could be used at any time when there was a risk of harm to the person or to another. The time-limited nature of the amendments that I proposed would be lost. Similarly, the safeguard that restraint could be used only in exceptional emergency circumstances would also be lost.

While the Deputy’s amendment specifies that restraint could be used only if it were the least restrictive measure, this addition is already encompassed in the guiding principles of section 8, which requires an intervention to be in a manner that minimises the restriction on the person’s rights and freedom of action. That covers this element of the amendment. As the Deputy’s amendment would, I believe, dilute the safeguards now in the Bill and allow for restraint to be used more widely than is permitted under my formulation, I cannot accept his amendment, although I fully understand from where the argument comes.

Deputy Mac Lochlainn proposed an amendment on Committee Stage whereby the concept of chemical restraint would be added to the categories of restraint which can be used only with tight safeguards by a decision-making representative or by an attorney. I have considered Deputy Mac Lochlainn’s proposal carefully. Following legal advice and consultation with the Department of Health, amendments Nos. 68 and 79 that I propose will address the Deputy’s concern. I propose a definition of restraint that would apply when a person is administered a medication with the intention of modifying or controlling the relevant person’s behaviour so that the person would become compliant. The definition of chemical restraint would also apply in circumstances where someone authorised another person to administer the medication. It is not just the immediate administration but second-hand administration also. I thank the Deputy for bringing this issue to my attention. I ask him not to press amendment No. 69 and to accept instead the amendment that I propose. Of course, it is entirely up to him but I believe we have managed a reasonable compromise.

I ask Deputy O’Dowd, in similar fashion, not to press amendment No. 142, which proposes to insert a new section 119. I consider that the amendments that I propose will address his concerns and will ensure that chemical restraint is subject to the same tight safeguards that will govern the limited use of restraint possible under the Bill.

Amendments Nos. 67 and 78 are consequential amendments that follow from amendments Nos. 68 and 79.

I thank the Minister of State for her response. In good faith, I agree to withdraw amendment No. 69, and obviously I will have a look at what the Minister of State tables in the Seanad. I also take on board what the Minister of State said about amendment No. 66. The Minister of State said she wishes to strengthen-----

What we propose is a greater test.

In good faith, I will withdraw amendments Nos. 66 and 69.

I welcome the change the Minister of State has accepted in the law. I am not exactly clear on the details, but I absolutely accept her integrity and commitment to ensuring that chemical restraint for control and purposes other than medical purposes will no longer be evident in any of our homes or institutions of care throughout the country. I support the views expressed by Deputies opposite on the use of chemical restraint in places where people with disabilities are resident. There is an appalling situation in dozens of our institutions of care in this country and it has to stop. I welcome the significant reports HIQA puts in the public domain and the demand for change they now create for service providers. I particularly welcome the Minister of State's commitment on chemical restraint. I presume it will appear when the Bill goes through the Seanad.

To repeat what I understand, the compatibility of what we are trying to achieve is to take giant steps towards signing the UN Convention on the Rights of Persons with Disabilities. The spirit in which the amendment is tabled is provided for in this charter. I hope the Minister of State agrees this is how we see it. We should not get lost in translation on the amendment or the spirit in which the Minister of State is trying to achieve it. I refer the Minister of State to a pretty comprehensive statement from the United Nations special rapporteur on the rights of persons with disabilities, which clearly sets out concerns about locked institutions, people being tied up with restraints, solitary confinement, the forcible injection of drugs and over medication. We could go on and on. In terms of the incremental step we need to take here today, this is one piece of legislation we need to pass as promptly as possible.

This means we must move on, trusting the legislation and, if needs be, coming back to it and amending it. It should be organic and open to add on. I strongly suggest we follow the spirit of what the Minister of State set out to do. If it ensures we as an Oireachtas comply with the UN convention, then we will have significant safeguards in the spirit of the legislation.

To be helpful, because chemical and physical restraint is a very complex area with regard to where it can be used, its duration and the safeguards surrounding it, the officials from the Department of Justice and Equality are willing to meet any interested Deputy to go into it in greater detail before the Bill goes to the Seanad. This might be helpful to everyone.

That is extremely helpful. I thank the Minister of State.

Amendment, by leave, withdrawn.

Amendments Nos. 72 and 126 to 128, inclusive, are related and may be discussed together.

I move amendment No. 72:

In page 53, line 21, to delete "3 years" and substitute "6 months".

The basis for this amendment is fairly self-explanatory. We feel a three year review for those under the old ward of court system is too long. The review should be carried out within six months to allow these people benefit from the new legislation. Amendment No. 126 argues that persons subject to detention pursuant to an order of the wardship court should expect a review as soon as possible, but ultimately within six months of the commencement of the legislation. Amendment No. 127 makes the same argument. The amendments are fairly self-explanatory.

I can give the Deputy the lengthy response to amendment No. 72 if that is what he wishes, but I am not certain it is necessary.

Basically, the difficulty we have with the amendment is there are 2,000 people in wardship, and if we were to stipulate a six-month period, there would be a logjam in court. I am also very fearful that there are people in wardship who may not be ready to move to a new system and who may not have the decision-makers in place to look after property or such required mechanisms. I worry that such people could be forced into a less favourable position because the time would be too short. Those who are ready to come out of wardship and who have those mechanisms in place have nothing to stop them from applying to the court. It is not that we are saying people must wait for three years. We need the courts to do this within a three-year timeframe, but the six-month timeframe is way too short and may not be favourable to the people involved, even if we forget the mechanisms we would have to put in place for the court. Our focus will always be on the person, and that is our major concern. I hope the Deputy understands that.

If all reviews had to be done in a six-month period, as proposed by the Deputy, many wards would be rushed into a position in which potentially more favourable options might not be feasible, as the time needed to plan for them would not be available. Reviews would have to be shortened to meet this pressurised deadline. I hope I am clear in stating that this is not related to resourcing or anything else, but rather being very careful about ensuring that people who find themselves in this new process will be comfortable about it and have enough time. Those who are ready can apply to the court and there should be no difficulty in that regard. For these reasons, I cannot accept the Deputy’s amendment.

Deputy Mac Lochlainn proposes in amendments Nos. 126 and 127 that reviews of detention orders of persons detained in an approved centre or in an unapproved centre on the order of a wardship court would be undertaken within a minimum period of six months from the Act's commencement. It is the intention that reviews of persons detained on the orders of a wardship court will be undertaken soon after the Act's commencement. I need to take legal advice to assess whether that would be legally possible and whether such amendments could have unintended consequences. I ask the Deputy not to press these amendments but to accept my assurances that I will examine them and, if they are feasible, will bring forward amendments along these lines on Committee Stage in the Seanad.

Deputy O’Dowd’s amendment No. 128 proposes to insert provisions on deprivation of liberty into the Bill. Deprivation of liberty is a very serious issue. The Department of Justice and Equality and the Department of Health have been working intensively on this issue to consider how it should best be approached. This is a very complex issue. Persons who have capacity but who have serious health issues may also be affected. Further work is needed to develop a suitable approach. This work needs some more time, but it will be undertaken in the context of the disability/equality (miscellaneous provisions) Bill, and we have been advised that that is the best place to deal with the issue. It is included in the current legislation programme and is required to enable us to ratify the UN Convention on the Rights of People with Disabilities. We need to recognise also that the problem can potentially affect people who have physical disabilities as well as those who lack capacity.

I assure the Deputy that I am taking this issue very seriously, because it is one of the major issues relating to our ratification process. I cannot agree to this amendment, as detailed policy and legal consideration is needed to ensure that the approach enshrined in legislation is appropriate and feasible. However, work is currently being undertaken as part of the overall process of preparing for Ireland’s ratification of the UN Convention on the Rights of Persons with Disabilities. I ask the Deputy not to press the amendment.

The Minister of State made the point in her contribution that nobody should be rushed into the process, and in some instances the ward of court system may be beneficial to the individual, which is the case. My question is the opposite of that posed by Deputy Mac Lochlainn: may people remain in the ward of court system longer than the three-year period if it is more beneficial for them to remain there instead of transitioning to the new system?

I support the amendments and I will speak on the general issue of wards of court and the legislation as a whole. It is not good enough to reject an amendment because it might create a backlog in the courts.

That is not what I said.

It is what the Minister said. We must look at putting resources in place to protect people's civil liberties. We know the wards of court system was widely abused in the past in order to deny people the right to make decisions because they simply did not fit with the social milieu of the time. I am not saying that is the case today, as society has moved on, but there could well be cases in which people are unjustly detained. Surely the Minister could admit that a six-month review is something basic to be put in place, rather than saying that we could not handle it and we will have to retain what is a potential block on civil liberties. We will have to put resources in place, and the Minister should not argue on those grounds.

I want to speak generally on the amendments. This is long-awaited legislation and I welcome many of its provisions. It is an effort by the Government to make the State compliant with the United Nations Convention on the Rights of People with Disabilities. It is replacing archaic legislation such as the Lunacy Regulation (Ireland) Act 1871 and the ward of court system. It is incredible that it is only now that we are replacing those outdated and archaic laws. Many amendments have been made, reflecting pressure from disability rights organisations, and it is good that a system of co-decision-making and decision-making is being put in place. I welcome the Government's deletion of the category of informal decision-makers, as this was potentially open to abuse. I am also glad that a decision support service and advance health care directives, for example, are being included.

The issue of resources is critical. We can give people all the rights we want on paper, but unless resources are provided, particularly in the Minister of State's own area of mental health, we will see people suffering. We must give support to individuals in making their own decisions, and that would require substantial investment in health care and more training for staff. It is shameful that we are still not ready to ratify the UN Convention on the Rights of People with Disabilities. The Government should accept amendments in the Seanad. We must end austerity, which has hit the health sector in particular and mental health and old age services within that. We must end cuts to the carer's allowance, and we have also seen how the respite care grant was cut. We have witnessed long waiting lists for people seeking autism assessments and the Government has taken legal cases against those attempting to access services for their children. Irish Sign Language has not been recognised, and people with disabilities in the mental health area have been particularly hit by austerity. We saw shameful scenes over the summer when people with disabilities picketed Government Buildings and stayed overnight. Unless there is a commitment to end austerity, the rights being put in place in this legislation will not be fulfilled.

I welcome the clarity that the Minister of State intends to bring to the issue, particularly with respect to amendment No. 128. I also welcome her commitment, which I do not doubt, to have it included in the legislation that is about to be published.

I acknowledge that absolutely, but there are issues that need to be ventilated at this stage. The first point is that the European Convention on Human Rights states that "[n]o one shall be subject to torture or to inhuman or degrading treatment" and that every single citizen "has the right to liberty and security of person". No one can be deprived of their liberty, except "in the following cases and in accordance with a procedure prescribed by law" as the European Convention on Human Rights states. They include "the lawful detention of a person after conviction of a competent court" and the lawful detention of a person who is suffering from a mental disorder, as defined under the mental health Acts. In addition, "Everyone who has been the victim of arrest or detention [...] shall have an enforceable right to compensation" and "[e]veryone has the right to respect for his privacy and family life" and "there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law". In fact, there is no clear law for the deprivation of rights of an individual that does not fall into category 5. The Law Society has been concerned about this issue. To enjoy the rights to liberty and security of a person, nobody can be deprived of their liberty unlawfully or arbitrarily, and any deprivation of liberty must be in conformity with the law. There is a duty on us as a State that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights principles.

Again, older persons who are placed in institutional care have the right to freedom of movement. Any restrictions must be lawful, necessary and proportionate in accordance with international law. Older people, in principle, should only be placed in a residential institution or in psychiatric care with their free and informed consent. Any exception must fulfil the requirements of the European Convention on Human Rights. This amendment defines deprivation of liberty and states that "[a] relevant person or any person having an interest in the well-being of a relevant person or any person who is concerned that the relevant person may be deprived of his or her liberty or where there is an interference with private and family life which is not in accordance with the European Convention on Human Rights, may make a complaint to the Director of the Decision Support Service". There is a clear vehicle where somebody who is concerned and has a right to be concerned can exercise that right by referring it to a very important officer, which is at the core of this legislation and the director, on receipt of such a complaint, can investigate it immediately and, if necessary, refer it to the courts.

The Council of Europe recommends that older persons, in principle, should only be placed in residential, institutional or psychiatric care with their free and informed consent. Any exception to this principle must fulfil the requirements of the convention on human rights. There are issues, clearly, where people with an intellectual disability and people who suffer from dementia are placed in institutional care. The question of whether they are there with their consent has to be properly and fully decided with respect to the deprivation of their liberty. It is not tenable that vulnerable persons can be deprived of their liberty when there is no clear guidance as to what constitutes deprivation of liberty or any indication of the limitations or procedures. It is absolutely vital, and I accept the Minister will take steps on this, that where a relevant person has been deprived of his or her liberty or where there is interference in article 8, the legislation will relate to that. It is right and proper that the Minister of State offered consultation with the responsible officials. I am happy to withdraw this amendment on the basis of what she said, but I would like her assurance that we will have recognition of the policy issue to be addressed with those officials and any other parties outside who should be concerned.

Finally, we all come across in our work as public representatives people who suffer from dementia and whose family reach a stage where they cannot look after them anymore. We all know that and we all acknowledge it. We also acknowledge the care, love, attention, and commitment that leads whole families to exhaust all the members of those families in looking after people with dementia and people who suffer from intellectual and other disabilities. That is not always the case. It is to protect the people who may be placed in care when there are other alternatives for them. That is a very important point. I know the role of the State is not a matter for debate today but we spend hundreds of millions on the care of people under the fair deal scheme and in nursing and institutional care, and yet we do not spend one fifth of the funding we should spend on keeping those people in their homes for as long as possible. One of the key challenges facing the next Government is to make sure that people in our community who are in the area we are talking about are looked after for as long as possible in their homes. I welcome the return of the respite care grant. Supports to families and to carers to look after people in their home are absolutely essential and need to be fast-tracked. The money must be put into supporting families who are looking after their loved ones in the community. The best possible place for people to be is in their homes and in family care, but to avoid having exhausted family members and people who are on the brink of serious medical problems themselves because of the stress they face, we need much more support from the State for home help and care at home.

Another issue that needs to be addressed is the question of technology to help people stay in their homes for longer. I know the Minister of State has been to Dundalk, where she has looked at the Great Northern Haven, a place for people who are mobile and able to look after themselves but which ensures that as they get older, they will be able to stay in their homes. Technology is used to turn on the light when they get out of bed, to interrogate them in a friendly way about whether they took their pills or not that day or to know whether they have fallen on the ground. There are all sorts of other issues that need to be addressed, which are absolutely critical for the future of our society and for the care of older people in our community. When somebody is of advanced years, the last place to put them is into care. The first place must always be to keep them in their homes but it is necessary to increase significantly the State help to those families and to be generous in that. No longer do I want to be called to a house to speak to a lady who is in her late 70s and whose husband in his 80s, where she cannot look after him because he is doubly incontinent and the house is upside down because the woman is at her wits' end. She cannot look after her husband, whom she has loved and cared for all her life and he has always cared for her. It is not good enough to have a woman in that position having to face the vista of four and a half hours of home help for the week to look after her husband. It is not good enough and it is not acceptable. I hope, as things improve financially, that Members will make significant commitments. All political parties and none, whoever they are and whoever they are not, when they stand for the election in the next few months should put on the record where they stand on these issues. They are the most important basic issues of care into the future for our society as it gets older.

Finally, on the question of dementia care and the Alzheimer's Society, I find it difficult to defend situations where people who offer respite and help to people in their homes are being challenged by the budgetary situation they are in. There is significant human suffering going on. There are families bearing major burdens of care and we are not doing enough to help them.

I hope that every party, including my own, will step up to the mark on this in the next general election.

I welcome the Minister of State's commitments. Perhaps she would give the reassurance of consultation at the appropriate stage. Accordingly, I will withdraw my amendment.

I note the Minister of State's comment. Obviously, there is a big gap between three years and six months and we need to close that gap when the Bill is taken in the Seanad.

The Minister of State made a generous offer that her officials - she is busy - who are working on the legislation can meet the parliamentarians and perhaps they would meet the following NGOs which are working on this: Tallaght Trialogue, Recovery Experts by Experience, Mental Health Reform, Inclusion Ireland and the Centre for Disability Law and Policy at NUI Galway. The Members of the Houses rely on civic society to give their input as part of the legislative process, and all my amendments were framed based on their advice. I appreciate that the Minister of State is engaging well. If she could agree that her officials could meet, perhaps next week when the Houses are not sitting, those named civic society groups to take on board their advice ahead of the Bill being taken in the Seanad, I will withdraw the amendments.

I assume all Deputies will be aware that we have been in close consultation with those groups. NUI Galway has been of particular help to us. Professor Gerard Quinn and his associates have worked closely with us. We all are agreed no legislation is perfect but we must do as much as we can and push the envelope as much as we can when we have the opportunity to do so.

We have no difficulty in re-engaging on these issues. Deputy Mac Lochlainn will understand that I could not give him a guarantee that it will be next week. Nevertheless, a list is being drawn up and that will happen.

In response to Deputy O'Dowd-----

I apologise for interrupting the Minister of State but for the purposes of clarification, will it happen before the Bill comes before the Seanad?

We have very close contacts.

We are in regular contact. That will not be a difficulty. The deprivation of liberty is a particular difficulty for us. I would hope to get the capacity legislation in place before Christmas but the deprivation of liberty is an issue. As Deputy O'Dowd correctly pointed out, it is not only about persons with mental health difficulties because they are dealt with under the mental health legislation more than any other legislation. It is not about prisoners because they are dealt with under justice legislation. The issue of persons with intellectual disability and older persons with dementia is a particularly challenging difficulty. We are advised, because we have been asking for a considerable period, that the best legislation in which to include it is the disability equality (miscellaneous provisions) Bill which is being worked on as we speak. We probably have greater scope in that to do something comprehensive. It will be one of the pieces of work that will be out of the way in terms of ratification.

In response to Deputy Naughten, it will not be possible to stay in wardship. I understand the Deputy's point. It is one of the struggles we have had in terms of questions about a person's will and preference and if he or she wants to stay. The difficulty, as all the experts, especially Professor Gerard Quinn and his team, will tell the Deputy, is that wardship is too paternalistic and we must move away from it. However, we must move away from it in a way that we have safeguards in place to ensure those involved are not left floundering and that a structure is in place to protect them as they move away from wardship. It will not be possible to stay, however.

I say to Deputy Coppinger that it is a terrible pity she entered in the middle of the debate because I am sure what I stated to Deputy Mac Lochlainn, who has been centrally involved in all this, is that it is not an issue of resources. It is about the individual's ability to be ready to be released from wardship. That is what I said and that is what I mean.

The debate so far has been an interesting one. Deputy Coppinger did not hear much of it.

The Minister of State said "court backlog". That is what I was referring to.

I said it has the possibility of creating a logjam-----

Exactly, that is what I said.

-----but it is not centrally about that. It is about ensuring those involved are ready to exit wardship. We have had a fruitful debate about the central issues in this complex legislation and I understand that some do not understand that. In not understanding what the legislation is about, I hope they will not revert to rhetoric because that is not what this debate is about.

The Minister of State need not be patronising when answering. Often she herself has not been here for entire debates. I am sure she will understand that the debate resumed and I came down as soon it did.

I was taking up the point about a court backlog which would require resources being put into the courts. We are all aware that there are considerable backlogs in the courts. That is what I was referring to.

The other point, to which a Government party Deputy referred, is the attacks that have taken place under the austerity agenda of the past eight years on persons with disabilities. Resources are relevant to this debate because persons with disabilities cannot access their rights if they do not have the resources.

Amendment, by leave, withdrawn.

I move amendment No. 73:

In page 54, line 17, to delete "pursuant to paragraph (b)".

Amendment agreed to.

I move amendment No. 74:

In page 54, line 18, to delete "section 43(1)(b)(ii)" and substitute "subsection (1)(b)(ii)".

Amendment agreed to.

I move amendment No. 75:

In page 54, line 24, to delete "section 43(1)(c)" and substitute "subsection (1)(b)(ii)".

Amendment agreed to.

I move amendment No. 76:

In page 54, to delete lines 29 to 33.

Amendments Nos. 76 and 77 propose that the provisions proposing the repeal of the Lunacy Regulation (Ireland) Act 1871 would be moved to a separate section in view of the significance of the provisions and because their effect extends beyond the scope of section 43 which deals with declarations following review and discharge from wardship. No change of substance is proposed by this amendment.

Amendment agreed to.

I move amendment No. 77:

In page 54, between lines 33 and 34, to insert the following:

"Repeal of Lunacy Regulation (Ireland) Act 1871

44. (1) Subject to subsection (2) and this Part, the Lunacy Regulation (Ireland) Act 1871 is repealed.

(2) Subject to this Part, subsection (1) shall not affect the validity of any order—

(a) made by the wardship court within its jurisdiction, and

(b) which was in force immediately before the commencement of this Part.".

Amendment agreed to.

I move amendment No. 78:

In page 61, line 18, to delete "or" where it secondly occurs.

Amendment agreed to.

I move amendment No. 79:

In page 61, to delete lines 19 and 20 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.

Amendments Nos. 80, 105 to 109, inclusive, 112 and 117 to 119, inclusive, are related and may be discussed together.

I move amendment No. 80:

In page 66, line 5, to delete "Public Guardian" and substitute "Director".

Amendment No. 80 is a technical amendment to change a reference from "Public Guardian" to "Director". This is something that came out of our engagement not only with the Deputies present who have an interest in this but also with the NGOs. As agreed by the Dáil on Committee Stage, the person appointed to head the decisions support service will be titled the director.

Deputy O'Dowd's amendments Nos. 105 and 106 propose that the director of the decision support service would be appointed by the Minister for Justice and Equality rather than by the Courts Service. However, it would not be appropriate for the Minister for Justice and Equality to make this appointment if the decision support service is to be located in the Courts Service.

As the Deputy is aware, the Government decided in June 2013 that the body responsible for undertaking the functions foreseen under this Bill would be located in the Courts Service. As a consequence, I cannot accept the Deputy's amendments. Similarly, I cannot accept the Deputy’s amendments Nos. 117 to 119, inclusive, which propose that the director of the decision support service would make an annual report to the Minister for Justice and Equality rather than to the board of the Courts Service. The director’s reports will have to be made to the body to which he or she is answerable. The Bill provides, in line with the Government’s decision of June 2013, that this should be the Courts Service. For this reason, I cannot accept the Deputy’s amendments.

Amendments Nos. 107 to 109, inclusive, propose that the functions of the director of the decision support service would be amended to remove the requirement for him or her to give guidance to persons such as decision-making representatives, attorneys, designated health care representatives, co-decision-makers, decision-making assistants or other persons exercising decision-making roles under the Act. The reason for the amendment is that the director will have the role of supervising persons with decision-making functions under the Act. It could compromise the director’s supervisory role if he or she also gave guidance to those persons under the Act. If the director were to advise a person to enter a co-decision-making agreement, for example, and a complaint was subsequently lodged by a third party against the co-decision-maker, the director's ability to investigate the complaint might be affected because of the advice previously given. In view of the director's regulatory functions, it is more appropriate, therefore, to limit his or her role to that of providing information on the provisions of the Act. The director will continue to have the role of offering guidance to specific sectors, such as the health care sector, given that they will not come under his or her supervisory functions.

While I hear what the Minister is saying, I want to make it very clear that at the very heart of the Bill is a very important person, namely, the director of the decision support service. The functions under the Bill have been greatly expanded, which I welcome. There are very positive and important aspects of the legislation which everybody wants to pass and I very much welcome it. However, many of the issues which need to be addressed are multidisciplinary and administrative and do not require or are not appropriate for a court hearing.

The director has been given powers to investigate complaints formally, by calling witnesses, or informally. The director will have a supervisory function including the establishment and maintenance of a number of registers and will have responsibilities to formulate codes of practice, identify and make recommendations for changes of practices and so on. The view of the Law Society is that given the wider context in which the director must operate, it should not constitute an element of the administration of justice. The legislation should provide that the decision support service would be an agency directly within the Department of Justice and Equality and not be an agency within an existing agency. This is critical and would mean the service would not be under the thumb of the Courts Service but would be independent in its function, which is broader than the Courts Service, separate from it and under the jurisdiction of the Minister and Department.

The Bill provides that the director be appointed by the Courts Service, that the staff should be members of the staff of the Courts Service and that the Courts Service shall be the appropriate authority regarding members of staff. This will give rise to perceptions on the part of vulnerable people who in many cases, with their families, require information, assistance and direction in coping with capacity issues and who do not see themselves as looking to a legalistic Courts Service for such assistance. It does not take account of the wider context of the decision support services operation and is a mismatch between the statutory function of two services. There is no synergy between the legal function of the director and that of the Courts Service. This is very important.

The provision in the legislation is not the best place for this power to reside. It should be independent of the Courts Service. The Minister said it would not be appropriate for the Minister to appoint the director, and I agree it should not be a political decision. Like the Garda assistant Commissioner posts, which were filled by open competition yesterday morning, the job should be advertised under the proper independent procedures and appointed by the accountable Minister. It would give greater separation of powers from the functions of the Courts Service which is entirely different in every respect from the function of this office.

I understand perfectly where the Deputy is coming from and we have agonised over it. Even if the job is filled as a result of public advertisement and open competition, perception is reality in politics. Once it is considered to be a decision ultimately made by the Minister, even if drawn from a list into which the Minister had no input, it will be perceived as a political appointment. The service is very clearly embedded in law. The person who heads the service will be essential and important. His or her attitude will be determined not just by the legislation but by the guiding principles behind the legislation. The director should be not too formal yet very conscious of the legal framework behind the office. We have discussed the issue in great detail and our recommendation is that it be within the Courts Service. Therefore, I cannot accept the amendment.

Having spoken to people who are experts in this area, I am not certain we want to establish a whole new apparatus around the service. We want to get away from the paternalistic attitude we had and still have. We are at the discussion stage on the legislation and as of now it will be in the Courts Service. It is essential we get the right person as director and that he or she has the right to assemble his or her own staff. The staff’s attitude and the guiding principles behind the legislation will be fundamentally important as to how it is administered. While the legislation will not change, the administration of it will be key.

While I respect what the Minister of State has said, I profoundly disagree with her statement that there would a perception of a political decision if the Minister of the day accepted a recommendation from the Public Appointments Service of a person for appointment to the post of director. It would not be, given that it would come from the Public Appointments Service. This is how it should be and how the Minister of State would want it. If it is under the Courts Service, it is part of an existing bureaucracy. One could argue about whether it is an enlightened or unenlightened bureaucracy. I cannot comment on it. It should be separate from the Courts Service, which has a separate statutory role. It must be independent of the Courts Service and I see no reason to change my mind. I accept the importance of the legislation and this is a key part of it. I will not press my amendment, notwithstanding my disagreement with the Department on it. I disagree with the Minister of State and the advice she has received.

I appreciate the Deputy's co-operation.

We will deal with the amendments in his name in due course.

Amendment agreed to.

I move amendment No. 81:

In page 70, to delete lines 18 to 37.

Amendment agreed to.

Amendment No. 82, in the name of Deputy Mac Lochlainn, cannot be moved.

It can be moved. I have not withdrawn it yet

I ask the Deputy to give me a moment.

It has not been ruled out of order.

I need to get some clarification.

I am trying to establish and assert my right to move it. In fairness, the Minister of State asked me earlier if I would withdraw a number of amendments and I indicated after some consideration that I would do so in good faith.

I apologise for the uncertainty here but I am informed that amendment No. 82 cannot be moved.

It cannot be moved because amendment No. 81 has been agreed.

All right so. The acceptance of amendment No. 81 has invalidated all the other amendments in my name in this group. I was willing to withdraw them in good faith and in acknowledgment of what the Minister of State has said.

Amendment No. 82 not moved.

Amendment No. 83 cannot be moved for the same reason.

Amendment No. 83 not moved.

I move amendment No. 84:

In page 70, to delete lines 38 and 39, and in page 71, to delete lines 1 to 25.

Amendment agreed to.

Amendments Nos. 85 to 87, inclusive, cannot be moved.

Amendments Nos. 85 to 87, inclusive, not moved.

I move amendment No. 88:

In page 72, to delete lines 16 and 17 and substitute the following:

"(b) the powers (if any) conferred on the representative in accordance with section 69(1)(b);".

Amendment agreed to.

As amendments Nos. 89 to 102, inclusive, are related, they may be discussed together.

I move amendment No. 89:

In page 72, line 27, to delete "important".

These amendments, which relate to provisions in Part 9 dealing with advanced health care directives, do not involve any substantive changes to the underlying policy of those provisions. They are minor technical amendments to refine the language in the sections in question to clarify more precisely the intention of the relevant provisions on advanced health care directives.

Amendment agreed to.

I move amendment No. 90:

In page 72, line 30, to delete "within the meaning of section 63".

Amendment agreed to.

I move amendment No. 91:

In page 73, lines 1 to 3, to delete all words from and including "which" in line 1 down to and including "subsection (12)" in line 3.

Amendment agreed to.

I move amendment No. 92:

In page 73, to delete lines 33 to 35 and substitute the following:

"(iv) the signature of the designated healthcare representative (if any) and the date that the representative signed the directive;".

Amendment agreed to.

I move amendment No. 93:

In page 75, between lines 4 and 5, to insert the following:

"(13) 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 agreed to.

I move amendment No. 94:

In page 75, lines 8 and 9, to delete "inconsistent with the directive remaining as his or her fixed decision" and substitute "inconsistent with the relevant decisions outlined in the directive".

Amendment agreed to.

I move amendment No. 95:

In page 75, line 13, to delete "broadly recognisable" and substitute "materially the same".

Amendment agreed to.

I move amendment No. 96:

In page 75, to delete lines 15 to 18 and substitute the following:

"(c) at the time in question the circumstances set out in the directive as to when the specific treatment is to be requested or refused, as the case may be, are absent or not materially the same.".

Amendment agreed to.

I move amendment No. 97:

In page 75, lines 29 and 30, to delete "address the ambiguity" and substitute "resolve the ambiguity".

Amendment agreed to.

I move amendment No. 98:

In page 75, line 37, to delete "addressed" and substitute "resolved".

Amendment agreed to.

I move amendment No. 99:

In page 75, lines 37 and 38, to delete "address the ambiguity" and substitute "resolve the ambiguity".

Amendment agreed to.

I move amendment No. 100:

In page 78, line 25, to delete "for a directive-maker".

Amendment agreed to.

I move amendment No. 101:

In page 79, line 19, to delete "following 2 powers" and substitute "following powers".

Amendment agreed to.

I move amendment No. 102:

In page 81, line 32, after "to" to insert ", or being led to believe that he or she has to,".

Amendment agreed to.

I move amendment No. 103:

In page 82, line 36, to delete "section 76(2)(p)" and substitute "section 76(1)(i)".

Amendment agreed to.

I move amendment No. 104:

In page 82, line 40, to delete "section 76(2)(p), of the Act" and substitute "section 76(1)(i)".

Amendment agreed to.
Amendments Nos. 105 and 106 not moved.

I move amendment No. 107:

In page 86, line 24, to delete "and guidance".

Amendment agreed to.

I move amendment No. 108:

In page 86, line 26, to delete "and guidance".

Amendment agreed to.

I move amendment No. 109:

In page 86, line 32, to delete "and guidance".

Amendment agreed to.

I move amendment No. 110:

In page 87, line 9, to delete "under this section".

Amendment agreed to.

I move amendment No. 111:

In page 88, line 9, to delete "to the office".

Amendment agreed to.
Amendment No. 112 not moved.

I move amendment No. 113:

In page 88, line 22, to delete "a function under this Act of the Director to a" and substitute "any of his or her functions to a specified".

Amendment agreed to.

I move amendment No. 114:

In page 89, lines 21 and 22, to delete "section 76(2)(a)" and substitute "section 76(1)(e)".

Amendment agreed to.

I move amendment No. 115:

In page 89, line 32, to delete "attorney" and substitute "attorney,".

Amendment agreed to.

I move amendment No. 116:

In page 91, line 15, to delete “to whom section 32(3)” and substitute “in the circumstances to which section 32(6)".

Amendment agreed to.
Amendments Nos. 117 to 119, inclusive, not moved.

I move amendment No. 120:

In page 92, line 21, to delete "as in force" and substitute "as may be in force".

Amendment agreed to.

I move amendment No. 121:

In page 92, to delete lines 33 and 34.

Amendment agreed to.

I move amendment No. 122:

In page 94, line 11, after "website" to insert "of the Director established under section 76(1)(i)".

Amendment agreed to.

I move amendment No. 123:

In page 94, line 12, to delete "section 76(2)(p)" and substitute "section 76(1)(i)".

Amendment agreed to.

I move amendment No. 124:

In page 94, line 16, to delete "section 76(2)(p)" and substitute "section 76(1)(i)".

Amendment agreed to.

I move amendment No. 125:

In page 94, line 28, to delete "section 76(2)(p)" and substitute "section 76(1)(i)".

Amendment agreed to.
Amendments Nos. 126 to 128, inclusive, not moved.

I move amendment No. 129:

In page 98, to delete line 9.

Amendment agreed to.

I move amendment No. 130:

In page 99, line 12, to delete “its” and substitute “their”.

Amendment agreed to.

I move amendment No. 131:

In page 99, line 12, to delete “it” and substitute “they”.

Amendment agreed to.

I move amendment No. 132:

In page 99, line 29, to delete “its” and substitute “their”.

Amendment agreed to.

I move amendment No. 133:

In page 99, line 30, to delete “it” and substitute “they”.

Amendment agreed to.

I move amendment No. 134:

In page 100, line 27, to delete “he or she” and substitute “the donor of an enduring power”.

Amendment agreed to.

I move amendment No. 135:

In page 102, line 28, after “country” to insert “other than the State”.

Amendment agreed to.

I move amendment No. 136:

In page 102, line 28, after “Article 33” to insert “of the Convention”.

Amendment agreed to.

I move amendment No. 137:

In page 103, line 3, to delete “another Convention country” and substitute “a Convention country other than the State”.

Amendment agreed to.

I move amendment No. 138:

In page 103, lines 21 and 22, to delete “outside the State” and substitute “in a Convention country other than the State”.

Amendment agreed to.

I move amendment No. 139:

In page 104, line 6, after “Article 33” to insert “of the Convention”.

Amendment agreed to.

I move amendment No. 140:

In page 104, lines 29 and 30, to delete “a Central Authority or other competent authority in a Convention country” and substitute “a central authority in another Convention country or other competent authority in that Convention country”.

Amendment agreed to.

I move amendment No. 141:

In page 105, to delete lines 3 to 5.

This amendment proposes to remove section 118, concerning clinical trials, from the Bill. Decisions on clinical trials involving persons who lack capacity should more appropriately be addressed in legislation under the remit of the Department of Health. Having reviewed the matter, I have concluded that it would not be desirable to prevent persons who lack capacity from participating in clinical trials. If we did so, it might prevent a treatment from being developed which could be to their benefit, such as a drug for Alzheimer's disease. The key issue is not to prevent people who lack capacity from participating in clinical trials but rather to ensure that if they do so, there will be robust safeguards in place. There is already an extensive framework in place to protect subjects participating in clinical trials, including incapacitated subjects, in the EU (Clinical Trials on Medicinal Products for Human Use) Regulations 2004, SI 190/2004, as amended. In addition, the clinical trials regulation, EU No. 536/2014, which is due to come into force in 2016, also contains extensive provisions relating to the protection of subjects. For this reason, I propose amendment No. 141, which will delete section 118 from the Bill.

Amendment agreed to.
Amendment No. 142 not moved.

I move amendment No. 143:

In page 105, between lines 13 and 14, to insert the following:

“(3) Save as provided in subsections (1) and (2) or otherwise expressly provided by any other provision of this Act, this Act applies to patients receiving treatment in an approved centre.”.

This amendment addresses the position of patients whose treatment is regulated by Part 4 of the Mental Health Act. The relevant section in the Bill provides that nothing in the Bill authorises a person to give a patient treatment for mental disorder or to consent to a patient being given treatment for a mental disorder if, at the time when it is proposed to treat the patient, his or her treatment is regulated by Part 4 of the Mental Health Act. However, there is nothing in the current Bill that specifically enables patients in approved centres to avail of the assisted decision-making provisions of the Bill. We consider that patients in approved centres should have the same rights as others to avail of assisted decision-making in respect of day-to-day decisions. We consider that the Bill should contain a clear statement that it applies in full to all patients in approved centres, save in so far as section 104 applies to any such patient. The inclusion of an express statement to this effect will ensure that the benefits of the legislation are available to people in approved centres. This amendment is not intended to be taken as an endorsement of the current provisions in Part 4 of the Mental Health Act, and previous submissions to the Department of Health regarding the review of the Mental Health Act should be borne in mind in this context. This amendment addresses specific concerns by ensuring that this Act will apply to all patients in approved centres.

Before I read out the official response, with which I agree, I must say that when we put in place a group to review the Mental Health Act, we continuously stressed that its members had to take cognisance of the fact that we were also developing capacity legislation. The group's recommendations around this issue are quite interesting. We are currently devising the general scheme of a Bill to amend the Mental Health Act of 2001, which dovetails with this legislation. That is important, and it is what Deputy Mac Lochlainn is seeking to achieve with his amendment.

Section 119 of the Bill seeks to ensure that there is no conflict between the Bill and the Mental Health Act 2001 with respect to the treatment of a patient with a mental disorder in an approved centre. It is clear from this section that a person with a mental disorder receiving treatment in an approved centre is governed by Part 4 of the Mental Health Act 2001. Under that Act, one of the conditions that a patient must fulfil in order to be involuntarily admitted to an approved centre is that he or she must have a mental disorder as defined in section 3 of the Act. Section 8 of the Act provides that a person may be involuntarily admitted to an approved centre pursuant to an application under section 9 or 12 and detained there on the grounds that he or she is suffering from a mental disorder. Therefore, all persons referred to in section 119 would have to be involuntary patients in an approved centre admitted under the Mental Health Act 2001.

Deputy Mac Lochlainn's amendment seeks to ensure that the Assisted Decision-Making (Capacity) Bill applies to all persons receiving treatment in an approved centre, with the exception of those referred to in subsections (1) and (2) of section 119 or otherwise expressly provided by any other provision of the Act - that is, involuntary patients. Therefore, it would appear that the persons to which this amendment could apply are voluntary patients receiving treatment in an approved centre. Sometimes a perverse logic appears in legislation.

It is contested that section 119 already provides for the amendment that the Deputy is seeking by expressly not authorising a person to give treatment for mental disorder or to consent to a patient being given treatment for mental disorder if his or her treatment is regulated by Part 4 of the 2001 Act - that is, involuntary patients - and the implication is that the Assisted Decision-Making (Capacity) Bill applies to all other persons, including those voluntarily admitted to an approved centre, once they fulfil the definition of a relevant person in the Assisted Decision-Making (Capacity) Bill.

I recently received Government approval to proceed with a general scheme of a Bill to amend the Mental Health Act 2001 based on the recommendations of an expert group report published in March this year. The expert group report contains 165 recommendations, a number of which relate to the assessment of capacity. It is interesting to look at what the group is recommending and what is already contained in the Bill. The expert group acknowledged in its report that when revised mental health legislation is being framed a further look at the final proposals in this Bill will be required. The group was not certain how this Bill would finally shake out and had to make certain assumptions.

The expert group has recommended that it will be necessary to develop simultaneously recommendations and guidelines for the assessment of capacity of persons who require admission to an approved centre for mental health treatment.

In other words, the group fully accepts this position. Before the Bill was drawn up, it expressed the view that capacity must also be assessed when a person is being admitted or assessed for admission. The expert group was very clear on the need for the admitting mental health professional to establish if the person has the capacity to understand and give his or her consent to the proposed admission to an approved centre. If the admitting mental health professional forms the view that the person may lack capacity to understand and give his or her informed consent to the proposed admission, he or she must refer the person for formal capacity assessment. If, following assessment, it is deemed that a person has capacity to admit himself or herself, a voluntary admission may proceed. If it is deemed that the person needs support to understand, make or convey this decision, such support must be provided and the exact detail of how this support will be provided will be examined in further detail during the preparation of the general scheme of the revision to the Mental Health Act.

As outlined, the revision of the Mental Health Act 2001 will put procedures in place to ensure the capacity of persons being admitted to approved centres is assessed and, where necessary, supports are put in place. The exact detail of how this will work and how it will interact with the legislation before us will be explored and examined in greater detail during the preparation of the general scheme of a Bill, a process that is under way in the Department of Health.

There may be a danger that the proposed amendment will be interpreted as meaning that all patients receiving treatment in an approved centre will need to avail of the provisions of the Act, which cannot possibly be the case. While a large number of patients will lack capacity or need assistance making decisions, there will be patients with full capacity who will be able to decide on all issues by themselves. The issue of whether a person needs the assistance of the Act should be determined by whether he or she is a "relevant person", as outlined in the definitions, not by the fact that he or she is receiving treatment as a voluntary patient in an approved centre.

That was a long-winded way of informing Deputy Mac Lochlainn that I will not accept his amendment. I hope he now understands the reasons for my decision.

I thank the Minister of State for her response. She indicated earlier that her officials will meet a number of groups, including Mental Health Reform. I will withdraw the amendment pending the outcome of those meetings. Mental Health Reform and the other relevant groups can raise the specific concerns that led to me tabling this amendment and tease out various matters with the Minister of State or her officials at that point. I hope they can then be addressed ahead of the Bill being introduced in the Seanad.

If we had not received the recommendations from the expert group on the Mental Health Act, I would share the concerns expressed by the Deputy. However, having considered the legislation in the context of the expert group's recommendations on admission and capacity, including the continuous assessment of capacity while in treatment, which were made without knowledge of the contents of the Bill, I am confident that we have a full protection procedure in place.

Amendment, by leave, withdrawn.

Amendments Nos. 144 to 146, inclusive, are related and may be discussed together.

I move amendment No. 144:

In page 106, line 20, to delete "Subject to subsection (2), nothing" and substitute "Nothing".

This is a technical amendment to remove an incorrect cross-reference. The cross-reference remained in the Bill incorrectly following the agreement on Committee Stage to my amendment proposing to delete the provisions that would have allowed an application to be made to the High Court to alter a will when a person has lost testamentary capacity.

Amendment No. 145 proposed by Deputy O'Dowd seeks to re-insert a provision that was removed on Committee Stage. The principle that a person's will should be respected goes to the heart of our system of succession. A will is made when a person has capacity and reflects the will and preferences of the person in terms of how his or her property and assets are to be disposed of after death. As I indicated when I sought the Committee Stage amendment, the court has traditionally been very reluctant to interfere with a will as the expression of a person's will and preferences.

I appreciate that there may be changes in circumstances between the point at which a will is drawn up and the death of the person. Such changes may make it impossible to carry out the person’s intentions at the time the will was drawn up. At the same time, if the principle is conceded that a will can be changed when a person has lost capacity, we run the risk that a beneficiary may falsely claim to the court that he or she can correctly interpret what the person's wishes were at the time the will was drawn up. We have no way of verifying the person's intentions with the person as that person will have lost capacity. The provision could lead to a circumstance in which a will might be altered against the intentions of the person. I am not satisfied that the provisions allowing for this facility to be used only in exceptional circumstances and where the interests of justice so demand are sufficient safeguards.

The more appropriate way to approach this issue is for solicitors to advise clients at the time of drawing up a will to ensure they are clear as to the way in which their intentions can be expressed most appropriately in a will, as well as the factors that may prevent their intentions from ultimately being implemented. This will enable a person, while still retaining capacity, to have the choice as to how to address the problem. For this reason, I cannot accept the Deputy’s amendment.

Deputy O'Dowd proposes, in amendment No. 146, to provide for a trust to be presumed in favour of the transferor in a voluntary transfer of property. This amendment does not seem to be specifically focused on persons with capacity difficulties and, as such, appears to be beyond the scope of the Bill. In any case, it will require further analysis and legal advice. While I cannot accept the amendment for these reasons, we will consider the matter further.

I thank the Minister of State for her response. As she indicated, the Bill, as initially published, included a provision similar to that proposed in amendment No. 146. However, the proposed measure was subsequently deleted. She is correct that making changes to wills is a serious matter, which must only be permitted in extremely important circumstances. The Law Reform Commission recommended permitting the High Court to make changes to a will in exceptional circumstances. This recommendation is reflected in my amendment. Why would the Law Reform Commission argue in favour of such a provision and why has the Department not accepted its recommendation?

Given how far we have gone on these issues, it is clear that there are serious and significant arguments in favour of my proposal. The Minister of State has outlined that, on balance, she accepts the arguments against the measure. The proposal should be implemented in the legislation because it is based on the experience of legal practitioners who can cite many examples to support it. In many cases, a person provides in a will for equal treatment to each and all of his or her children and gives specific assets to each of them. However, during a subsequent lack of capacity, liquid assets bequeathed to a particular beneficiary may be used for the benefit of the testator, thereby leaving one of the children out of benefit. If the testator had the capacity to do so and in line with the overarching intention to benefit all and each of his or her children equally, he or she would alter the will to ensure equal benefit. The Law Reform Commission recommended allowing the High Court to alter a will if justice demands and in exceptional circumstances. The commission was careful to point out that it would not be appropriate to intervene in circumstances where no will had been drawn up as to do so would be to impose a view on the testator. I reiterate that the recommendation of the Law Reform Commission should stand and apply only in exceptional circumstances.

The manipulation of assets by members of the legal profession, attorneys and family members through joint accounts and other means sometimes, though rarely, results in individuals, primarily family members, being able to arrange inheritance to suit themselves and ensure other family members do not inherit or are disinherited. In practice, this is an area that is wide open to abuse. The Law Reform Commission consulted practitioners before making its recommendations. As such, the proposed amendment has the authority and experience of the legal profession behind it. The amendment is before the House to deal with such exceptional circumstances.

The second amendment deals with financial abuse. Financial abuse is clearly a very serious issue. There are increased levels of financial abuse, particularly of older people, and various HSE reports, including Open Your Eyes, clearly state that legislation must be put in place to provide safeguards and meet our obligations under the UN Convention on the Rights of Persons with Disabilities. The convention states that states party shall ensure that all measures relating to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. HIQA and HSE reports into nursing homes show that there have been significant allegations of financial abuse. I am aware of a case in County Meath in which the owner of a nursing home was the beneficiary of a will, which was entirely inappropriate. There was litigation about that. It is very important to protect our people from financial abuse. What is recommended here is only one element. Joint accounts can often abused and this may be facilitated by financial institutions which do not raise the appropriate red flags when these issues arise. Research from the National Centre for the Protection of Older People at UCD and the annual report of the HSE show that there is a large element of financial abuse, particularly of older people. The abuse is there and my amendments are reasonable and proper. While they will not be accepted by the Minister of State, I accept in the good faith in which she offers it her commitment to look at this issue again.

The recommendation of the Council of Europe on the promotion of the human rights of older people sets out that member states shall provide for appropriate awareness-raising and other measures to protect older people from financial abuse, including deception and fraud. I welcome the Minister of State's response to my second amendment, although I do not agree with what she said about the first. I am happy to hear her comments.

I appreciate what the Deputy has said. Clearly, he is very committed to the whole area. When I look at legislation that is in development or being brought before the House, I always ask how I would like to be treated if I were in the relevant circumstances. Each and every one of us expects that no matter to whom we leave what little we have as we depart this world, our wishes and preferences will be respected. It would have to be extraordinary or exceptional circumstances for it to be otherwise. When these cases arrive in court, it usually ends up that there is nothing left to be distributed. It is unseemly. We must always look at it from the point of view of the individual and his or her will and preference. We may not always agree with it. People in our own families with complete capacity may make decisions we do not agree with, and we have to accept them as their decisions. That is it.

I accept fully what the Deputy says. We all have experience of that kind of financial abuse occurring from time to time, sometimes with the compliance of those who do not know any better. I cannot accept the amendment because our advice is that it would have consequences down the road. Nevertheless, I accept fully what the Deputy says and I commit to looking at the matter again.

After reading the Minister of State's statement, I acknowledge her points. I will not be pressing the amendment. I accept that this is an extremely difficult thing to have to do and, as the Minister of State rightly says, it would have to involve extremely exceptional circumstances for a matter to go the High Court. It would be where the person had lost his or her testamentary capacity, and the High Court, on application by the director of decision support services, could or should be able to alter the will where it is satisfied that exceptional circumstances have arisen since the loss of that capacity and the interests of justice so demand. There would have to be exceptionally clear evidence that somebody who was a party to a will and had an equal right to an equal share had been deprived of that by the actions of another party. I accept the Minister of State's point that this is what is going to be in the legislation.

Amendment agreed to.
Amendments Nos. 145 and 146 not moved.

I move amendment No. 147:

In page 107, to delete lines 4 and 5 and substitute the following:

“(b) in subsection (5), by deleting “subsections (2) and (3)” and substituting“subsections (2), (2A) and (3)”.”.

Amendment agreed to.

I move amendment No. 148:

In page 108, lines 41 and 42, to delete “designated healthcare representative or person referred to in section 61(1)” and substitute “or designated healthcare representative”.

Amendment agreed to.

I move amendment No. 149:

In page 109, line 8, to delete “5th anniversary” and substitute “2nd anniversary”.

This is a self-explanatory amendment. We feel that five years is too long a period and ask for two years to be the period after which the legislation will be revisited, given the very serious matters the Bill addresses.

This is a mammoth Bill, as everyone involved knows. It will change how people who are close to others will have to think. Changing how people think is a major task. My preference would be to introduce the legislation on an incremental basis because the people it affects are people with whom time will have to be spent to explain exactly what its impact is and what it makes possible for their own circumstances. On that basis, two years is far too short a period after which to review the legislation. The Bill will have an impact on everyone's life, whether as a carer or as someone being cared for. It will have a significant impact. Five years will be seen in hindsight to be a very short period in which to allow the legislation to become embedded and part of the institutional structures which will take us into the future. I consider two years to be too short and I do not say so to be awkward; I believe it. I am still fascinated by the fact that the Mental Health Act 2001 is already being reviewed even though it was due to be reviewed much earlier. Clearly, all of the elements had not been put in place. Now that it is being reviewed, we can look back and ask what we would do differently. We will be doing the same with the legislation before us and determining how it has dovetailed with other Acts.

I can understand the Deputy's desire to have a review more quickly because we are always worried that something may just be something else for the shelf. Clearly, when it is legislation, it cannot be something else for the shelf. As such, we must be careful about how we proceed. There will be certain groups in society whom we can move more quickly with, but there will also be those on whom this will have an impact and with whom we will have to be very careful and tread very softly. I am not saying "No" to the Deputy's amendment for the sake of saying "No." I believe genuinely that it needs more time, just as the wards of court matter that we dealt with earlier needs more than six months. I accept fully that the Deputy's job is to ensure that it happens as quickly as possible, but five years is a reasonable timeframe. If it happens more quickly, happy days, but five years is a decent timeframe in terms of the type of legislation this is.

Amendment put and declared lost.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

Since this is significant legislation, we can all be justifiably proud when it concludes. There has been interaction in this Chamber and outside and everyone has had engagement with NGOs and people with an interest. It is important that this be acknowledged. Everyone has made an input into the Bill and there will be further changes because we will continue to listen. Members' further engagement with NGOs before 10 November, when the Bill is scheduled for the Seanad, will prove important, as it will provide us with a greater understanding. Apart from one or two officials and the people in Galway and the NGO sector, the rest of us are still only learning about this important matter. We are doing what many countries have not done and they are looking to us. One country in particular is waiting for us to move, as it intends to take what we have done and implement it.

I thank the Deputies for their involvement. This is not a sexy Bill and it did not move quickly but that pace contributed to what we have achieved. This legislation is something to which people will refer. It will have an impact on everyone in terms of birth injuries, acquired injuries, dementia, Alzheimer's and so on as we move through life and if we are lucky enough to reach old age. I appreciate everyone's contribution to the debate. I also appreciate people's patience with the Bill. We could have concluded this two years ago but Professor Gerard Quinn told me that we could do a better job if we slowed the process down and talked to those who had greater levels of expertise. That advice has served us well.

The officials who usually sit quietly next to me in the Chamber have been incredible. They are now the experts in this area, having learned much as the legislation progressed. They have been the ones to say that we should change the Bill, that it is not person-centric enough and that we could do better. Whole groups of people have approached us. Some are in the public gallery. They brought their expertise, advice and knowledge to bear on this legislation.

Deputy Keaveney stated that, in the event that there were changes in our thinking, circumstances, the evidence or what we acknowledged, there was nothing preventing us from reverting to this legislation and adding to or deleting from it. Good legislation should not be static. It should be fluid, particularly when it is legislation such as this that impacts on everyone's life. We must be prepared to be flexible in this regard.

I thank all of the Deputies for their participation. This is not the end of the process and they will continue having an interest in one way or another. That is as it should be, as we are servants of the people and, more than other legislation, this Bill is about how we live.

I thank the Minister of State and her officials for their hard work and their agreement to engage with civic society partners, those who work on the front line and are experts in these issues, in order to address any remaining concern around the Bill ahead of the Seanad debate. As was the case on Committee Stage, today's engagement has seen a significant number of amendments, which reflects the fact that the Minister of State and her officials have been listening. Let us continue in that spirit in the Seanad and make the Bill the best that we can because many people are counting on it to be what it needs to be.

I acknowledge the work of the Minister of State and her officials. As she stated, this is complex and unattractive legislation. Getting one's head around it is difficult but something good has happened today and we have taken a giant step in protecting vulnerable people who cannot protect themselves. In this legislation, we have done human rights a great justice. While the Bill is not perfect, the spirit shown in reaching this juncture has led to a giant leap. If needs be, let us learn from this law's application and how it blends in and let us consider what changes can be made. It is milestone legislation, in that it is a significant component in the marker we must lay down in terms of the UN convention on human rights and the rights of people with disabilities. The sooner we progress legislation in this regard, the sooner we can sign off on our charter and obligations towards people with disabilities.

Question put and agreed to.