Assisted Decision-Making (Capacity) Bill 2013: From the Seanad

The Dáil went into Committee to consider amendments from the Seanad.

Seanad amendments Nos. 1, 2, 5, 248, 252, 253, 256 to 269, inclusive, 274 to 294, inclusive, and 296 are related and may be taken together.

Seanad amendment No. 1:
Section 1: In page 9, line 30, after “Minister” to insert “, after consultation with the Minister for Health,”.

This group of Seanad amendments deal with the moving of the decision support service out of the Courts Service. The amendments were in response to the Government’s decision of 8 December that responsibility for the decision support service be moved from the Courts Service to the Mental Health Commission. The Government’s decision was in response to the concerns expressed at the proposal to locate the decision support service in the Courts Service. The original decision to locate the office of the public guardian, as it was then called, in the Courts Service was based on the view that the Office of the Wards of Court would form the kernel of the staff of the new body. However, stakeholders have recommended that the decision support service be moved away from the Office of the Wards of Court to avoid the false impression that wardship could be perpetuated by another name.

Locating the decision support service in the Mental Health Commission sets a clear boundary between the old wardship system and the new options available for persons with capacity difficulties. The decision to choose the Mental Health Commission as the location of the decision support service was made because the commission has expertise in key functions that will be undertaken by the new body. It has experience of providing information, preparing codes of practice, setting standards, performing regulatory functions and undertaking investigations. It approaches its current functions from a human rights-based perspective, which is what will be important for the new body. It has the necessary skills mix needed by the new body. There will be a need for the rebranding of the Mental Health Commission to reflect its new responsibilities. This will have to be worked out with it in the coming months.

The Seanad amendments are consequential on the Government’s decision to move the decision support service to the Mental Health Commission. It is proposed that all references to the board of the Courts Service be replaced by references to the Mental Health Commission. It is proposed that any reference to the Minister for Justice and Equality be replaced by a reference instead to the Minister for Health, as the Mental Health Commission comes within his remit.

Seanad amendment agreed to.
Seanad amendment No. 2:
Section 2: In page 10, to delete line 14.
Seanad amendment agreed to.

Amendments Nos. 3, 6, 7, 11 to 15, inclusive, 17 to 19, inclusive, 22, 23, 26, 133 to 138, inclusive, 140, 141, 147, 160, 218 to 247, inclusive, and 250 are drafting amendments and may be discussed together.

Seanad amendment No. 3:
Section 2: In page 10, to delete lines 18 to 20.

This is a large group of amendments that are technical in nature and do not have policy implications. They concern a range of corrections to the wording to simplify the text and clarify the intent of the provisions in the Bill. They also provide for textual consistency within the Bill.

Seanad amendment agreed to.

Amendments Nos. 4, 8, 20, 21, 68, 76, 142 to 146, inclusive, 148, 176 to 214, inclusive, 297 and 298 are related and may be discussed together.

Seanad amendment No. 4:
Section 2: In page 10, to delete lines 23 and 24 and substitute the following:
“ “attorney” has the meaning assigned to it by section 51(1);
“attorney under the Act of 1996” means a person appointed under an enduring power under the Act of 1996;”.

This group of amendments provide for the remodelling of Part 7 relating to the enduring power of attorney. I indicated on Committee Stage in the Dáil that I would bring forward amendments to the enduring power provisions to align them with the revised provisions on co-decision-making and change the jurisdiction from the High Court to the Circuit Court. It was an issue Deputy Colm Keaveney also raised with us.

The Seanad amendments to the enduring powers of attorney provisions align the provisions with the UN Convention on the Rights of Persons with Disabilities and current international best practice. The amendments also align the provisions with the rest of the Bill. The amendments strengthen the safeguards against attorneys acting outside the authority given to them. They address potential risks of abuse and exploitation of donors. They strengthen protection for the rights of donors and provide for attorneys to be accountable and held responsible for their actions.

One the main substantive changes to Part 7 is that the director will not register enduring powers that have been created under the 1996 Powers of Attorney Act but have yet to be registered. I received legal advice stating that it would not be possible for the director to register these enduring powers under this Bill. These will have to be registered under the 1996 Act by the Office of the Wards of Court as is the current system. However, that group of attorneys and all other enduring powers registered under the 1996 Act will be subject to the new complaints and offences provisions that were inserted by way of Seanad amendments Nos. 194 and 198. I believe that this provides greater protection.

Seanad amendment agreed to.
Seanad amendment No. 5:
Section 2: In page 10, to delete line 25.
Seanad amendment agreed to.
Seanad amendment No. 6:
Section 2: In page 10, to delete lines 28 and 29.
Seanad amendment agreed to.
Seanad amendment No. 7:
Section 2: In page 11, between lines 19 and 20, to insert the following:
" "designated centre" has the meaning it has in section 2 of the Health Act 2007;".
Seanad amendment agreed to.
Seanad amendment No. 8:
Section 2: In page 11, to delete lines 22 to 25 and substitute the following:
" "enduring power of attorney" has the meaning assigned to it by section 51(2);
"enduring power under the Act of 1996” means an enduring power referred to in section 4 of the Act of 1996 which was created in accordance with the provisions of that Act;".
Seanad amendment agreed to.

Seanad amendments Nos. 9, 10, 25, 46 to 49, inclusive, 53, 55, 72, 73, 75, 77, 82, 90, 105, 106, 115, 215 to 217, inclusive, and 249 are related and will be discussed together.

Seanad amendment No. 9:
Section 2: In page 11, line 28, to delete "(9)" and substitute "(10)".

I will address Seanad amendments Nos. 9, 10, 25, 46 to 49, inclusive, 53, 55, 72, 73, 75, 77, 82, 90, 105, 106, 111, 215 to 217, inclusive, and 249. This is another large group of amendments. It concerns a range of corrections to wording, spelling, cross-references, section numbers and updates to legislative references. The amendments are necessary to ensure coherence across the Bill and do not introduce any policy changes. Essentially, they tidy up the Bill’s provisions.

The Minister of State may have referred to amendment No. 115 in this grouping as amendment No. 111. I just want to clarify that the correct reference is amendment No. 115.

I will read out the grouping of amendments again for the sake of clarity.

The correct reference is amendment No. 115.

Seanad amendment agreed to.
Seanad amendment No. 10:
Section 2: In page 11, line 33, to delete "paragraph (a), (b), (c), (d), (e) or (f)" and substitute "paragraph (a), (b), (c), (d), or (e)".
Seanad amendment agreed to.
Seanad amendment No. 11:
Section 2: In page 11, to delete lines 35 to 38 and substitute the following:
" "intervention”, in relation to a relevant person, means an action taken under this Act, orders made under this Act or directions given under this Act in respect of the relevant person by—".
Seanad amendment agreed to.
Seanad amendment No. 12:
Section 2: In page 12, to delete lines 17 to 21 and substitute the following:
" "owner", in relation to a designated centre or mental health facility, includes a person managing a designated centre or mental health facility, or a director (including a shadow director within the meaning of section 222 of the Act of 2014) of, or a shareholder in or an employee or agent of, a company which owns or manages such a centre or facility;".
Seanad amendment agreed to.
Seanad amendment No. 13:
Section 2: In page 12, line 30, to delete "nursing home or residential facility" and substitute "designated centre".
Seanad amendment agreed to.
Seanad amendment No. 14:
Section 2: In page 13, to delete lines 12 and 13 and substitute the following:
"(g) the discharge of the relevant person’s debts, tax and duty liabilities and obligations or other obligations;".
Seanad amendment agreed to.
Seanad amendment No. 15:
Section 2: In page 14, to delete lines 12 and 13.
Seanad amendment agreed to.

Seanad amendments Nos. 16, 27, 41, 62 and 270 to 273, inclusive, are related and will be discussed together.

Seanad amendment No 16:
Section 2: In page 14, between lines 13 and 14, to insert the following:
" "relevant information", in relation to a relevant person, means personal records relating to the relevant person or other information that the relevant person is entitled to and that is or are required in relation to a relevant decision;".

Seanad amendments Nos. 16, 27, 41, 62, and 270 to 273, inclusive, inserted provisions to ensure that information is sourced, used and stored correctly and in compliance with data protection obligations.

Seanad amendment No. 16 brings the Bill into compliance with the Data Protection Act by including a definition of "relevant information". This definition will enable interveners to know the categories of information that they can and cannot access.

Seanad amendment No. 27 inserts a new guiding principle into section 8. It seeks to ensure that the Bill complies with the Data Protection Acts by prescribing the data protection obligations that will arise for all interveners under the Bill. All interveners will be obliged not to attempt to obtain or to use information acquired in relation to a relevant person other than for the purposes of the decision. Interveners will also be required to ensure that the relevant information is safely stored to prevent unauthorised access, use and disclosure. Furthermore, a requirement is proposed which would require an intervener to dispose of the information when that information is no longer required.

Seanad amendments Nos. 41 and 62 remove the specific obligations on decision-making assistants as these are now covered by the obligation in Seanad amendment No. 27 which covers all interveners. Seanad amendments Nos. 270 and 271 introduce additional provisions into section 82 concerning the obligations that will apply to general visitors and special visitors when seeking records relating to a person with capacity difficulties. They will need to have access to such records mainly when they are investigating a complaint received by the director in relation to a person with capacity difficulties. The amendments require the general visitor or special visitor to seek the consent of the person with capacity difficulties prior to seeking the records in question. The consent requirement can be dispensed with where the person has a decision-making representative or an attorney under an enduring power of attorney. This is for the following reason. If the special visitor or general visitor is examining a complaint, it may often be against a decision-making representative or an attorney. It would not be appropriate, therefore, for the person against whom a complaint is potentially being made to have the possibility to refuse access by the special visitor or general visitor to the records in question. The amendments require the special visitors and general visitors to store records safely and to dispose of them when no longer needed. To ensure that these restrictions are complied with, the director will be obliged to carry out an annual check to ensure that special visitors and general visitors are complying with these obligations.

Seanad amendments Nos. 272 and 273 provide for the same provisions and obligations on court friends as are specified in relation to general visitors or special visitors.

Seanad amendment agreed to.

Seanad amendment No. 17:
Section 2: In page 14, lines 17 and 18, to delete "in accordance with the provisions of this Act".
Seanad amendment agreed to.
Seanad amendment No. 18:
Section 2: In page 14, to delete lines 35 to 39, and in page 15, to delete lines 1 to 8 and substitute the following:
"(a) one or both residing in or entering a designated centre or mental health facility, or
(b) one or both residing in or entering an institution (of whatever kind) for purposes relating to—
(i) a physical or mental condition of the person concerned, or
(ii) the imprisonment, or the taking into lawful custody, of the person concerned.".
Seanad amendment agreed to.
Seanad amendment No. 19:
Section 3: In page 15, lines 10 to 12, to delete all words from and including "(including” in line 10 down to and including "directive)" in line 12.
Seanad amendment agreed to.
Seanad amendment No. 20:
Section 4: In page 16, line 4, to delete "Parts 6, 7," and substitute "Parts 6,".
Seanad amendment agreed to.
Seanad amendment No. 21:
Section 4: In page 16, lines 4 and 5, to delete "and Schedules 1 and 2".
Seanad amendment agreed to.
Seanad amendment No. 22:
Section 4: In page 16, line 23, to delete "relevant".
Seanad amendment agreed to.
Seanad amendment No. 23:
Section 4: In page 16, line 26, to delete "relevant".
Seanad amendment agreed to.

Seanad amendments Nos. 24 and 167 to 175, inclusive, are related and will be discussed together.

Seanad amendment No. 24:
Section 7: In page 17, to delete lines 3 and 4 and substitute the following:
"Repeals
7. (1) The Marriage of Lunatics Act 1811 is repealed.
(2) Subject to the provisions of Part 6, the Lunacy Regulation (Ireland) Act 1871 is repealed.".

I will address Seanad amendments Nos. 24 and 167 to 175, inclusive. Seanad amendment No. 24 is a technical amendment. It moves the provisions repealing the Lunacy Regulation (Ireland) Act 1871 to section 7. It is considered good drafting practice for the legislation which is to be repealed to be included in the same section. No change of substance is involved. The Bill proposes to repeal, as previously agreed, the Marriage of Lunatics Act 1811. The Lunacy Regulation (Ireland) Act 1871 will be repealed with the exception of the transitional arrangements of Part 6 to allow all adult wards to be discharged from wardship and-or migrated to the new options.

Seanad amendments Nos. 167 to 175, inclusive, proposed a series of amendments to make more precise the process by which wards will be discharged from wardship. No change of policy is envisaged by these amendments.

Seanad amendments Nos. 167, 170 and 172 provide that the wardship court shall not review the capacity of a ward but rather make a declaration under section 46(1). These amendments are necessary because the existing provisions do not correctly describe what is envisaged. Where a person has been admitted to wardship without reference to his or her capacity, such as in the case of many minor wards, they should be able to be discharged from wardship without reference to their capacity. Instead, what the wardship court will do is to review the ward’s case and, where only necessary, make a determination as to the ward's capacity. That will be done only where it deems it to be necessary.

We want to make this as free-flowing as possible.

Seanad amendment No. 169 was in response to a request from Sinn Féin Senators that an application for a review of a ward’s case could be made by a relative or friend of the ward who has had such personal contact with the ward that a relationship of trust exists between them. Seanad amendment No. 171 ensures that there is continuity in terms of the provisions in place for wards throughout the process of moving from wardship to discharge or to the new options. This amendment does not change in any way the deadlines already set out in the provisions. Wardship will be phased out for adults within three years of the commencement of Part 6. A minor ward will be entitled to a court hearing on his or her case no later than six months after his or her 18th birthday.

Seanad amendment No. 174 inserted a new section 47 that will allow the wardship court to continue its jurisdiction pending the discharge of a ward or the ward’s migration to the new options foreseen under the Bill. This amendment will allow payments, for instance, to continue to be made pending the court hearing on a ward’s case. It is important that people are not stuck without funds. Saving provisions were needed to ensure orders of the wardship court made before this Part is commenced remain valid even if the 1871 Act is repealed. This is to provide certainty in terms of payments to third parties, etc.

Seanad amendment No. 175 deletes section 49. The provisions of this Bill are essentially for adults. It is important that boundaries should not be blurred between the current arrangements and the arrangements foreseen under the Bill. To make this clear, the director of the decision support service’s role will not have a role in minor wards. Matters relating to minor wards will continue to be handled by the office of the wards of court.

It is important that we recognise what is happening in these amendments. A great effort has been made to correct language in our legislation. The stigma associated with mental health issues is a great stealer from families and it causes great harm. I, therefore, welcome the fact that we are rooting out archaic, dark, rotten language from our legislation, which is why I broadly support it. It is 145 years in the waiting. Shame on this House that during the reference period of the Republic it has failed to root out rotten, dark language that imposes stigma on people. The amendments impose liberty in terms of the capacity of someone to survive within a confined scenario. They are important and this is one of the blocks in the improvements in legislation that we, as a House, have to work together on to meet our international obligations. I welcome these significant amendments and I hope it is the start of something wonderful in the context of legislative language that rips out negativity, addresses stigma and gives people a sense of pride in saying, "Yes, I have a mental health issue and I wear it on my sleeve. To hell with stigma".

Seanad amendment agreed to.
Seanad amendment No. 25:
Section 8: In page 17, line 8, to delete "subsections (2) to (9)" and substitute "subsections (2) to (10)".
Seanad amendment agreed to.
Seanad amendment No. 26:
Section 8: In page 18, line 27, to delete "relevant".
Seanad amendment agreed to.
Seanad amendment No. 27:
Section 8: In page 18, between lines 31 and 32, to insert the following:
"(10) The intervener, in making an intervention in respect of a relevant person—
(a) shall not attempt to obtain relevant information that is not reasonably required for making a relevant decision,
(b) shall not use relevant information for a purpose other than in relation to a relevant decision, and
(c) shall take reasonable steps to ensure that relevant information—
(i) is kept secure from unauthorised access, use or disclosure, and
(ii) is safely disposed of when he or she believes it is no longer required.".
Seanad amendment agreed to.

Seanad amendments Nos. 28 to 40, inclusive, 42, 43, 149 to 159, inclusive, and 161 to 164, inclusive are related and will be discussed together.

Seanad amendment No. 28:
Section 10: In page 19, line 14, to delete "person" where it firstly occurs and substitute "person who has also attained that age".

Seanad amendments Nos. 28 to 40, 42, and 43 align the provisions relating to decision-making assistants with those agreed by the Dáil for co-decision-makers. In response to a request from disability groups last month, amendment No. 29 will allow a person to appoint more than one decision-making assistant. Seanad amendment No. 31 inserts a new section 11 specifying the persons who are not eligible to be decision-making assistants. Seanad amendment No. 32 inserts a new section 12 on nullity while Seanad amendment No. 33 inserts a new section 13 relating to the disqualification of a decision-making assistant. The provisions are in line with those agreed by the Dáil for co-decision-makers. One of the principal changes is in Seanad amendment No. 43 which inserts a new section 12. This new section 12 will allow for complaints to be made against decision-making assistants to the director of the decision support service.

Seanad amendments Nos. 149 to 159 and Nos. 161 to 164 align the provisions relating to decision-making representatives with the more robust provisions agreed by the Dáil for co-decision-makers. Seanad amendment No. 152 inserts a new section 36 on persons who are not eligible to be decision-making representatives. Seanad amendment No. 153 inserts a new section 37 relating to the disqualification of a decision-making representative. Seanad amendment No. 162 inserts a new section 39 on the register of decision-making representation orders.

The principal changes occur in Seanad amendments Nos. 163 and 164. Seanad amendment No. 163 inserts a new section 40 setting out the provisions relating to the reporting obligations of a decision-making representative. These are in line with the provisions agreed for co-decision-makers. If a decision-making representative fails to submit a report or submits an incomplete report, the director will contact him or her on this issue. If he or she continues to fail to submit a complete report, the director will have the power to apply to the court for a determination on whether the decision-making representative should continue in the role.

Seanad amendment No. 164 inserts a new section 41 on the complaints mechanism that will apply where complaints are made against decision-making representatives. A person will be able to make a complaint where the representative is acting or proposing to act beyond the scope of the functions specified in the court order. A complaint will also be possible where the representative is not suitable such as where the representative is in conflict with the relevant person or is not able to perform the role. Where the director finds a complaint to be well-founded, he or she will be able to apply to the court for a determination on the matter.

Seanad amendment agreed to.
Seanad amendment No. 29:
Section 10: In page 20, to delete lines 11 to 18 and substitute the following:
"(5) An appointer may, in the decision-making assistance agreement, appoint more than one person as a decision-making assistant and may specify that the decision-making assistants shall act—
(a) jointly,
(b) jointly and severally, or
(c) jointly in respect of some matters and jointly and severally in respect of other matters.".
Seanad amendment agreed to.
Seanad amendment No. 30:
Section 10: In page 20, to delete lines 19 to 42, and in page 21, to delete lines 1 to 32.
Seanad amendment agreed to.
Seanad amendment No. 31:
Section 11: In page 21, between lines 32 and 33, to insert the following:
"Persons who are not eligible to be decision-making assistants
11. (1) A person shall not be eligible for appointment as a decision-making assistant 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 him or her,
(b) has been the subject of a safety or barring order in relation to the person who intends to appoint him or her,
(c) is an undischarged bankrupt or is 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 a person who is—
(i) the owner or registered provider of a designated centre or mental health facility in which the person who intends to appoint him or her as decisionmaking assistant resides, or
(ii) residing with, or an employee or agent of, such owner or registered provider, as the case may be, unless the person is a spouse, civil partner, cohabitant, parent, child or sibling of the person who intends to appoint him or her as decision-making assistant,
(g) has been convicted of an offence under section 31, 72, 73 or 128, or
(h) previously acted as decision-making assistant for the person who intends to appoint a decision-making assistant and there was a finding by the court under this Part that he or she should not continue as decision-making assistant for that person.
(2) Subsection (1)(c), (d) and (e) shall not apply where it is proposed to give the person functions relating to personal welfare only.".
Seanad amendment agreed to.
Seanad amendment No. 32:
Section 11: In page 21, between lines 32 and 33, to insert the following:
"Nullity
12. Where an event specified in any of paragraphs (a) to (c) occurs, a decision-making assistance agreement shall, with effect from the date on which the event occurs, be null and void to the extent that the decision-making assistance agreement relates to a relevant decision where there is, in respect of the relevant decision—
(a) a decision-making order, a decision-making representation order or a co-decision-making agreement 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 or enduring power under the Act of 1996 made by the appointer that has entered into force.".
Seanad amendment agreed to.
Seanad amendment No. 33:
Section 11: In page 21, between lines 32 and 33, to insert the following:
"Disqualification as decision-making assistant
13. (1) A decision-making assistant 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 the decision-making assistance agreement provides otherwise, be disqualified from being a decision-making assistant for the appointer where the decision-making assistant 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.
(2) A decision-making assistant 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 the decision-making assistance agreement provides otherwise, be disqualified from being a decision-making assistant for the appointer where the decision-making assistant is the civil partner of the appointer and subsequently—
(a) the civil partnership is annulled or dissolved (other than where the dissolution occurs by virtue of the parties to that civil partnership marrying each other) either—
(i) under the law of the State, or
(ii) under the law of another state and is, by means of that annulment or dissolution not or no longer a subsisting valid civil partnership under the law of the State,
(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.
(3) Subject to section 2(2), a decision-making assistant shall, at the expiry of the period referred to in this subsection, and unless the decision-making assistance agreement provides otherwise, be disqualified from being a decision-making assistant for the appointer where the decision-making assistant is the cohabitant of the appointer and subsequently the cohabitants separate and cease to cohabit for a continuous period of 12 months.
(4) Subject to subsection (5), where, subsequent to the appointment of a decision-making assistant—
(a) the decision-making assistant 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 decision-making assistant in relation to the appointer or a child of the appointer,
(c) the decision-making assistant 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 decision-making assistant becomes 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) the decision-making assistant 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 or any other provisions of that Act,
(f) the decision-making assistant becomes—
(i) the owner or registered provider of a designated centre or mental health facility in which the appointer resides, or
(ii) a person residing with, or an employee or agent of, such owner or registered provider, as the case may be, unless the decision-making assistant is a spouse, civil partner, cohabitant, parent, child or sibling of the appointer,
(g) the decision-making assistant is convicted of an offence under section 31, 72, 73 or 128, or
(h) the decision-making assistant—
(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 or enduring power under the Act of 1996 registered in respect of himself or herself, or
(iv) becomes the subject of a declaration under section 34(1), the decision-making assistant shall be disqualified from being a decision-making assistant for the appointer with effect from the date on which the decision-making assistant falls within any of paragraphs (a) to (h).
(5) Subsection (4)(c), (d) and (e) shall not apply insofar as the decision-making assistant’s functions under the decision-making assistance agreement relate to personal welfare.".
Seanad amendment agreed to.
Seanad amendment No. 34:
Section 11: In page 21, line 34, to delete "The functions of a decision-making assistant shall be—" and substitute the following:
"In exercising his or her functions as specified in the decision-making assistance agreement, the decision-making assistant shall—".
Seanad amendment agreed to.
Seanad amendment No. 35:
Section 11: In page 21, to delete lines 35 to 37 and substitute the following:
"(a) assist the appointer to obtain the appointer’s relevant information,".
Seanad amendment agreed to.
Seanad amendment No. 36:
Section 11: In page 21, line 38, to delete "to advise" and substitute "advise".
Seanad amendment agreed to.
Seanad amendment No. 37:
Section 11: In page 22, line 1, to delete "to ascertain" and substitute "ascertain".
Seanad amendment agreed to.
Seanad amendment No. 38:
Section 11: In page 22, line 2, to delete "to assist" and substitute "assist".
Seanad amendment agreed to.
Seanad amendment No. 39:
Section 11: In page 22, line 4, to delete "to assist" and substitute "assist".
Seanad amendment agreed to.
Seanad amendment No. 40:
Section 11: In page 22, line 5, to delete "to endeavour" and substitute "endeavour".
Seanad amendment agreed to.
Seanad amendment No. 41:
Section 11: In page 22, to delete lines 6 to 14.
Seanad amendment agreed to.
Seanad amendment No. 42:
Section 11: In page 22, between lines 15 and 16, to insert the following:
"(5) A relevant decision taken by the appointer with the assistance of the decision-making assistant is deemed to be taken by the appointer for all purposes.".
Seanad amendment agreed to.
Seanad amendment No. 43:
Section 12: In page 22, to delete lines 16 to 37 and in page 23, to delete line 1 to 4 and substitute the following:
"Complaints in relation to decision-making assistants
12. (1) A person may make a complaint in writing to the Director concerning one or both of the following matters:
(a) that a decision-making assistant has acted, is acting, or is proposing to act outside the scope of his or her functions as specified in the decision-making assistance agreement;
(b) that a decision-making assistant is unable to perform his or her functions under the decision-making assistance agreement;
(c) that fraud, coercion or undue pressure was used to induce the appointer to enter into the co-decision-making agreement.
(2) Following the receipt of a complaint under subsection (1), the Director shall carry out an investigation of the matter which is the subject of the complaint 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 a 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) A person who receives a notification under subsection (2)(b) may, not later than 21 days after the date of issue of the notification, appeal a decision of the Director that the complaint is not well founded to the court.
(4) 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 the court for a determination in relation to any matter specified in subsection (1).
(5) The court may—
(a) pursuant to an application to it under subsection (2)(a) or (4), or
(b) pursuant to an appeal under subsection (3), make a determination in relation to a matter specified in subsection (1) and may, if it considers it appropriate, determine that a decision-making assistant shall no longer act as such in relation to the appointer concerned.".
Seanad amendment agreed to.

Seanad amendments Nos. 44, 45, 50 to 52, inclusive, 54 to 61, inclusive, 63 to 67, inclusive, 69 to 71, inclusive, 74, 78 to 81, inclusive, 83 to 89, inclusive, 91 to 104, inclusive, 107 to 114, inclusive, and 116 to 132, inclusive, are related and will be discussed together.

Seanad amendment No. 44:
Section 14: In page 23, line 23, after “section” to insert “and section 15”.

Amendments Nos. 44, 45, 50 to 52, inclusive, 54 to 61, inclusive, 63 to 67, inclusive, 69 to 71, inclusive, 74, 78 to 81, inclusive, 83 to 89, inclusive, 91 to 104, inclusive, 107 to 114, inclusive, and 116 to 132, inclusive, are essentially technical points to address some issues that need to be resolved in the provisions on co-decision making. Amendment No. 80 is intended to make clearer the remedies available to a third person if he or she unknowingly relies on a co-decision-making agreement which is later found to be null and void. My amendment proposes that the third party would not be prevented from recovering damages for any loss incurred as a result of unknowingly relying on a null and void co-decision-making agreement. Amendment No. 91 proposes an additional ground for objection to the registration of a co-decision-making agreement, namely that a false statement is included in the application to register the agreement. Amendment No. 104 proposes an additional provision that would allow the director to make inquiries when an incomplete report has been submitted and to satisfy himself or herself that the report is in order. This provision allows the director the flexibility to accept an incomplete report where the circumstances warrant it. Amendment No. 107 clarifies that the grounds for complaint against a co-decision maker includes if he or she is acting outside the scope of his or her functions. Amendment No. 116 specifies more precisely that the court can make a determination when an appeal has been made under the new subsection (3) and within the time limit of 21 days specified in that subsection.

An issue has been brought to my attention by some of the stakeholders on facilitating the move of the decision support service to the Mental Health Commission. A number of NGOs advocate that a DSS should be set up as an independent statutory body with reporting responsibilities to the Department of Justice and Equality. Stakeholders have advised me they were not consulted about this move and do not support it. Who did the Minister of State consult with and did she take on board their concerns about this? Is she willing to reconsider their view that the decision support service should be set up as an independent statutory body similar to comparable bodies such as the National Disability Authority? I acknowledge that the Minister of State has engaged with stakeholders throughout the process. We have hundreds of amendments here again which some people criticise. I do not because I think it is a sign the Minister of State is listening and making changes. She has made changes on different Stages of the Bill; it will never reach a point of perfection but legitimate concerns have been brought to my attention. Is there time for reflection and change? If the Minister of State is adamant this is what she wants to do, will she set out the reasons why?

The Minister of State dealt with this point in her contribution on a previous amendment in which she spoke of the work to take place in the immediate future with the Mental Health Commission. The language she used was interesting because it gives the House an opportunity to look at her ambition for the overall role of the Mental Health Commission and to build this aspect of legislation into its remit. I welcome that the work will take place in the immediate future and I hope it will give us an opportunity in the House to talk about the role of the commission and its capacity to fulfil the spirit of the provisions of the legislation. The Mental Health Commission is an appropriate location because it is a location where the correct language is used and where professionals within the sector play an important role. Therefore, it is probably the location best suited to fulfil the spirit of the legislation. Will the Minister of State explain what she meant when she said work has to take place? Work has to take place in general on the Mental Health Commission and its role. Such work will provide the House with an opportunity to underpin the required confidence that the spirit of the legislation will be upheld to its utmost.

Competence is the issue. Over the last two years, we have been told constantly that the Courts Service is not the appropriate place. People did not feel comfortable with the paternalistic approach taken to justice over the centuries by past Governments. There is a perception that the court system is concerned with the imposition of penalty. This legislation is essentially about liberation and allowing people to make decisions for themselves. When we looked at the ideal decision support service we decided it must be stand-alone and independent. Unfortunately, our big difficulty is our inability to create an additional stand-alone body because of a Government decision concerning all legislation. We decided that the Mental Health Commission was the right place because it has the expertise and understands the functioning of capacity. This is essentially what it does. Those Deputies concerned with mental health issues will be aware of its safeguarding role. It is an independent body that has never been afraid to criticise, say something should not have happened and suggest a way to fix it.

I spoke about the work that needs to be done. The Mental Health Commission will have to be rebranded in the coming months. The process of rebranding will involve negotiation but I imagine it will become the Mental Health Commission and the decision support service on capacity. It is an expert body and understands the situation better than any other group in the country. We all understand that. This will be about safeguarding people's rights. The Mental Health Commission has always had a human rights based position. This is very clearly where this will be centred and we have spoken to the commission and it is very happy to take on the task. It is the group most likely to tell us we are doing the wrong thing, yet in this case it did not because it thinks it is a good fit.

I have spoken to other people with an intense interest in this area, who I will not mention now, as it would be unfair to do so. Yesterday, the morning after the Bill went through its final Stages in the Seanad, I spoke to an expert in the area who said the Mental Health Commission is the perfect fit. It will undergo substantial changes in the next couple of years, not in terms of what it does, but what it will be asked to do - its remit will be broadened. It was unhappy about the paternalistic nature of the imposition of penalty by the Courts Service so it is anxious to do this job. It will do a very good job. I understand the concern that all people with difficulties in capacity will be lumped into one area but it will be a separate entity attached to the Mental Health Commission and will not be subsumed by it.

The organisations that have concerns about this are Tallaght Trialogue and Recovery Experts by Experience.

I understand that the Centre for Disability, Law and Policy in NUI Galway, the National Disability Service and Inclusion Ireland have advocated for an independent statutory body. I listened to what the Minister of State said and I understand this Government's policy of amalgamation of bodies. As Sinn Féin spokesperson on justice I have dealt with more legislation than most spokespersons. However, that is the nature of the justice and equality area. The Charities Regulatory Authority is a new body. The legal services regulatory authority that will soon be established will also be a new body. We would not stand for either of those bodies being subsumed into another agency. The independent policing authority is also a new body. Two pieces of legislation which came through this House in recent days provide for the establishment of independent authorities that, hopefully, will have the confidence of the people. While the policing authority is a step in the right direction, I have some concerns about it. Nevertheless, both bodies will be independent. I do not understand why the calls of the experts, the NGOs to which, as a Member of this House, I defer, for the decision support service, DSS, to be an independent statutory body cannot be delivered on given, as I have just outlined, this Government recently established the aforementioned bodies, and rightly so. They are new bodies being established in the justice area. I am sure that new bodies are also being established in other areas.

Is there a better way of doing this? I know that like me the Minister of State, Deputy Kathleen Lynch, respects and engages with the organisations I mentioned. Perhaps we should listen to them and make the DSS a stand-alone operation.

We have always held the view that this legislation is far from perfect. The Minister of State stated earlier that work on the transfer of the decision support service, DSS, from the Courts Service to the Mental Health Commission will commence in the next couple of weeks. Perhaps she would elaborate further on that point. The Minister of State also said that the service user is to be given the choice of engaging with the Mental Health Commission or the Courts Service, which speaks for itself. As I said, this legislation is far from perfect. It is important, in the context of the process that will take place in the forthcoming months, that stakeholders are afforded an opportunity to engage on how the DSS will function and operate, taking into account the human rights and concerns of the citizen affected. It is also important that we know how this service is to be resourced by the commission. I am interested in hearing the Minister of State's response to those questions in the context of the very crafted reply she read out earlier in relation to a previous amendment. The upcoming process may afford an opportunity to assuage the fears of the stakeholders involved that the Mental Health Commission, as opposed to the Courts Service, is the right location, in terms of its environment, language and culture, for the DSS.

The Minister of State said that location of the decision support service within the Mental Health Commission is a perfect fit, which contradicts the point she made earlier that the ideal would be a stand-alone agency but because the Government has committed to not creating any new agencies another appropriate location had to be found. It seems to me to be a very blunt tool that because the Government is committed to not creating any new agencies, despite that it, independent experts and so on recognise that in this case the ideal would be the establishment of an independent agency, the Minister of State's hands are in that regard tied. This would indicate that the Mental Health Commission is not a perfect fit. From the Minister of State's point of view it appears to be a second best option. Related to that is the lack of consultation with the key stakeholders who, despite having advocated for an independent agency, feel their views in that respect were not taken on board.

The two new bodies mentioned are self-funding, which is the central difference. For as long as I am involved in politics I will not allow the imposition of financial penalties in this area. I have a particular problem with the association of the Road Safety Authority with the Mental Health Commission. The fundamental difference is that the Road Safety Authority is self-financing, as are the two central agencies mentioned by the Deputy.

The policing authority is not self-financing.

No, but it will remain part of the justice system. It will be independent but so, too, is the Mental Health Commission. Perhaps a future Government will decide that the DSS should be a stand-alone agency. Even if that were the case now, I would still be looking to the Mental Health Commission for direction in this regard. The mental health commissioners are the experts in this area. They understand what it means to be deprived of one's liberty and will and preference. There is no disagreement in regard to whether the DSS should be a stand-alone agency. A stand-alone agency is the ideal. Even if we were establishing such an agency now we would still be looking to the Mental Health Commission for direction in relation to the putting in place of the necessary experts, structures and so on. What is proposed is the best fit in the circumstances. We cannot all live in utopia: we must always deal in the circumstances in which we find ourselves at a particular time. What is proposed is the best fit. I understand the perceived difficulties-----

Perhaps the Minister of State will tell us why it is the best fit. She has not told us thus far why the Mental Health Commission is the best fit.

The Mental Health Commission has the expertise in this area. As I said, even if we were in this legislation proposing the establishment of a new agency we would still be looking to the Mental Health Commission to do it for us. The Mental Health Commission has the expertise and knowledge required to do this. It has been doing this type of work since its establishment. The mental health commissioners are the ones who know what this means. They will also, in the context of the transfer of the DSS, address the issue of stigma, which is a huge problem in relation to mental health specifically. This Bill deals also with issues outside of the mental health area. As I said, the Mental Health Commission has the expertise in this area. It operates from a strictly human rights basis, which is what this legislation is about, centrally.

As I said, even if we were establishing a stand-alone agency we would be asking the Mental Health Commission to assist us in that regard. However, we cannot do what the Deputies' propose.

The Minister of State said in the Seanad that the ideal would be a stand-alone agency.

She also said that unfortunately the Government is committed to not create any new agencies.

The Minister of State is agreed that the ideal would be a stand-alone agency. As such, she is in agreement with the NGOs, civic society experts and so on. As I understand it the Minister of State has deferred that she would share their point of view.

The only reason the Minister of State has given for the non-establishment of a stand-alone agency is that the Government is committed to not creating new agencies. As I said the Charities Regulatory Authority and proposed legal services regulatory authority-----

They are self-financing.

The policing authority is not self-financing, so that excuse is out the window. The other bodies I mentioned are subsidised by central government. Although they raise additional revenue through levies from the charities and legal services sectors, they do receive public money also. The Minister of State's excuse for why the DSS is not being established as a stand-alone agency is that the Government is committed to not creating new agencies. I have just mentioned three newly established agencies, legislation in respect of which recently passed through this House. There is no grounds for what the Minister of State is saying. I do not understand this. It is obvious she is being advised by departmental officials that the DSS should not be a stand-alone authority.

I sense that the Minister of State agrees with the stakeholders that a truly independent stand-alone agency would be preferable.

I have just torn apart the very reason the Minister of State gave in the Seanad and here today. It has been torn apart. She said no new agencies have been created by the Government. I identified three in the Department of Justice and Equality. She then said they were self-funding. They are not. The policing authority is not self-funding and the other two are only partially self-funding. The Minister of State stated in the Seanad:

The ideal would be a stand-alone agency. There is no disagreement about it. [Those were her words in the Seanad.] Unfortunately, the Government has committed not to create any new agencies. [That is not true.] Therefore, we had to find something more appropriate.

That is also not true because the Government has created new agencies and it has funded them and they will continue to be funded. I ask the Minister of State to challenge her officials on this point. She should not press these amendments today. She should meet the representatives of the NGOs and acknowledge that the grounds she has given are just not there.

The Deputy is repeating himself.

I echo those points. It is a bit baffling-----

The Deputy is easily baffled.

-----that the Minister of State agrees that the best case scenario is an independent agency. The experts agree the best case scenario is an independent agency. The Minister of State then says the Government has decided it cannot set up any new agencies and therefore, unfortunately, it cannot do what is best. This approach does not seem to be focused or centred on the needs of those who are affected by the Bill.

I take the Minister of State's point about the expertise of the Mental Health Commission and the role it would play in the setting up of an independent body. That is fine and that expertise can be brought on board. However, the Minister of State stated in the Seanad, "I am conscious that the Mental Health Commission's current service users may be a different target group from the much broader client base of the decision support service". This not just an extension or continuation of the work of the Mental Health Commission. Many people will be affected by the decision support service who would not be affected by the Mental Health Commission. This again points to the logic of having an independent agency.

Will the Minister of State confirm the advocates and groups consulted on the issue and the representations made?

I will try to be constructive. We have always said that the legislation was far from perfect. It has taken 145 years to get to a far from perfect situation. I do not want to be seen to be bailing out the Minister of State but I am conscious that we need to look at this matter from the point of view of the citizen.

The term "independent agency" has been used here today. There is an independent agency, which is the Mental Health Commission. It has a statutory, independent role.

It is very much independent.

The question, therefore, concerns consultation. The Minister of State states that work has to take place with the Mental Health Commission in the immediate future. This may give the Minister of State an opportunity to address the concerns around the perception that there has been no engagement with stakeholders. The Mental Health Commission is an independent body which was set up in 2002. Its functions include the promotion, encouragement and fostering of high standards and good practice. That is its strategic core message and mission. In the interests of an affected citizen, I would much prefer that a culture of support, understanding and professionalism would be provided within or parallel to the Mental Health Commission rather than the cold, challenging stigma associated with the courts. This is the appropriate location but that is not where the debate is going.

This is about consultation.

It is actually more than that; I will make a further point in a moment.

I take at face value that the Minister of State consulted people, as she said, yesterday morning. The object of my intervention is to see if the Minister of State can assuage fears around the consultation process. What consultation will take place with the Mental Health Commission in the immediate future in order for it to underpin the best outcomes for citizens who will be affected by the legislation?

This Bill has been four years in gestation and we have had two years of consultation, which is why it has been amended repeatedly. The Bill is not the same as the one that first appeared. There is no resemblance. The Title has changed as has the concept underpinning the Bill. The term "best interests" was used in the Bill when it first appeared. We now talk about "will" and "preference", which is an entirely different concept. We are going further in this Bill than any other country has gone. It is the most advanced capacity legislation.

We consulted stakeholders. When we consulted stakeholders on where to locate the decision support service, everyone told us not to locate it in the courts and we all understand why. The notion that the Mental Health Commission would be in any way tainted as not being independent is laughable.

That is not what we said.

I am not saying they said it. The Mental Health Commission is truly independent. We have a job of work to do which will happen over the next six months. There will be a rebranding, which will benefit both sides. However, the Mental Health Commission has the expertise in terms of standards, functionality and human rights in this area. It has the expertise in terms of dealing with people who feel disenfranchised and not heard. The commission has the expertise and that is why this is the place to be.

Even if we were to put a stand-alone body in place, we would still be asking the commission to do it for us because it has the expertise. When I met those people yesterday morning, in a different context entirely, and asked them what they thought, they said it was perfect. These people truly are the experts on the legislation. They are not necessarily expert on the operational piece but they have been advising us constantly on the legislation. One of them told me retirement was now a possibility. There was no problem with its base.

I understand the problem of perception. We need to work to ensure the general perception around mental health is shifted. It needs to shift and is shifting. The fact that we are having this discussion is an advance and we have had several discussions.

The two bodies that were set up recently are self-financing. They may need seed capital-----

The policing authority is not self-financing. It is not true.

The policing authority is attached to the Department of Justice and Equality. If one makes that argument about the policing authority, one clearly has to make the same argument about the decision support services. It will be attached to another body, which gets Government funding, but it is independent.

The Minister of State is now saying the policing authority is not independent.

The Minister of State, without interruption.

It will be independent in its operation but it is attached to another body. If we are to examine this issue again, I can tell Deputy Mac Lochlainn that the Bill will be left in the wilderness.

I thank an tAire Stáit and ask her to move the adjournment.

Hold on. It is 11.58 a.m. The clock is above us.

Will the Deputy resume his seat?

No. On a point of order, it is 11.58 a.m. It is not 12 noon.

The Deputy should resume his seat. I can see the time up here and it is this new clock that counts. If the Deputy wants to adjust the time as well, he can do so in his own time.

There it is. It is 11.59 a.m.

Progress reported; Committee to sit again.