I thank the Cathaoirleach and again acknowledge Senator Corrigan's genuine interest in this area. Moreover, by way of trying to bring a definite commitment to the Seanad, I made a commitment in this House just before the Christmas recess that the Bill would be published in that session, meaning up to the Christmas period. Obviously however, this has not happened. I reiterate this legislation is vital and anything that has been done in respect of the proposals in A Vision for Change, as well as the entire reform of the mental health services, absolutely depend on this legislation coming before the House. It is my absolute hope and belief that itwill be ready by mid-February and I have asked the departmental officials to ensure this happens.
In addition, I wish to provide the Senator with some details to tie this down. I note that everything else springs from that by way of the United Nations convention. More than 18 months have elapsed since a conference hosted by Inclusion Ireland was held in Killarney. When discussions were opened to the floor at that conference, the proposed mental capacity Bill was a real issue for parents and others who attended it. In addition, at any public meeting over the past 18 months or two years or whenever I have met disability organisations, the mental health representative groups or the service users, this question always arises. On foot of my term in the Department with responsibility for mental health, I obviously would like to be linked with this and believe it can happen as it is vital to make progress in all respects. In addition, it is necessary to recognise the underlying commitment regarding the equality issue that also is inherent in respect of mental health and disability.
The Minister for Justice and Law Reform, Deputy Dermot Ahern, is glad to be able to inform the House, through me, that the mental capacity Bill is at an advanced stage of being drafted by the Parliamentary Counsel. I also am pleased to state it is the intention of the Minister to publish the Bill as soon as possible in the near future and hopefully by mid-February. He also welcomes the interest in the Bill shown by Senator Corrigan and understands the concerns of a large number of interests that the legislation should be in place in order that the important changes being provided for can take effect.
Following the approval by the Government of the Minister's proposals for the Bill, by way of a scheme of a Bill, the details were published on the website of his Department. It is worth recalling that, in summary, the main proposals are as follows. First, it is proposed to reform the existing wards of court system, in so far as it applies to adults, and replace it with a modern statutory framework governing decision-making on behalf of persons who lack capacity. The current system is outdated and is incapable of coping with the existing and projected demographic growth of persons who lack capacity. Second, it is proposed to change existing law with regard to what constitutes lack of capacity. In future, the focus will be on the particular time when a decision has to be made and on the particular matter to which a decision relates. This functional understanding of capacity is a significant change from the current system, whereby a finding of incapacity applies to each decision a person may make and each legal transaction into which he or she may wish to enter.
The Bill also will provide a set of key underlying principles to guide all interventions made on behalf of persons lacking capacity including a presumption of capacity, subject to a contrary determination by the court, that no intervention may take place unless it is necessary having regard to the needs and individual circumstances of the person and that any act done or decision made under the Bill must be done in the person's best interests. Moreover, a person shall not be treated as being unable to make a decision unless all practicable steps to help him or her to make a decision have been taken without success.
The first step will be assisted decision-making for an incapacitated person. The person must, so far as is reasonably practicable, be permitted and encouraged to participate or to improve his or her ability to participate as fully as possible in any act done for him or her and any decision affecting him or her. The next step will be substitute decision-making, whether by the court or by a personal guardian appointed by the court. It is anticipated that where court intervention is required, the court will make once-off decisions and where a number of ongoing decisions are required, a personal guardian will be appointed by the court for that purpose. The courts will have jurisdiction and powers to make decisions on capacity and appoint personal guardians. The Bill will re-enact and expand the provisions of the Powers of Attorney Act 1996. The Bill will unify the legislation on enduring powers of attorney and the new personal guardian system to ensure the laws on capacity and substitute decision-making are cohesive and comprehensive. The Bill also will clarify the law for carers who take on responsibility for persons who lack capacity. It will provide statutory protection against liability for certain acts done in connection with the care or treatment of other persons and allow for normal everyday decisions to be made on their behalf without reference to the court. Provided the carer does not act negligently or criminally, no issue can then arise in respect of the decisions he or she makes on behalf of the person who lacks capacity.
A new administrative structure, the office of public guardian, will be established to ensure a more effective and appropriate system for persons who lack capacity and their families is in place. The office of public guardian will supervise court-appointed personal guardians and donees of enduring powers of attorney. It was important that the publication of the Minister's proposals gave an opportunity for persons and organisations to give their views on the proposed reforms. The Minister wishes to take the opportunity, through me in this House, to thank all those who gave views and he can assure them that these views have been given consideration and will be taken into account as far as possible. The consultation process has helped to inform further his examination and that of his Department of the issues.
While I must acknowledge there has been some delay in publishing the Bill, time has not been lost in the meantime in putting a considered shape on policy and, indeed, in taking into account the Exchequer position in so far as the new legislation must be appropriately funded. The efficiency and effectiveness of the provisions in the Bill must, inevitably, require particular scrutiny. However, what will become clear on publication and enactment of the Bill is that the law in this area will have profound and lasting effect and will wipe out laws that now are clearly outdated. The Minister and I fully understand the importance of this legislation and we certainly are hopeful that it will come before the House by mid-February.
