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

Before we commence, I remind members that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to discussion on it. On Report Stage, each amendment must be seconded.

Amendments Nos 1 to 3, inclusive, amendments Nos. 73 to 75, inclusive, amendments Nos. 77 to 111, inclusive, and amendment No. 113 form a composite proposal and will be discussed together, by agreement. Is that agreed? Agreed.

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

We are nearing the finish line in many respects but before I begin I will acknowledge some people in the Visitors Gallery today who have taken an incredible interest in this Bill, not just in terms of the Law Reform Commission. Ms Jean Spain is in the Visitors Gallery. Ms Spain and Ms Deirdre Carroll were two of the first people who ever approached me about capacity and this Bill is centrally about those who have contributed. I acknowledge their contribution.

The Government decided on 8 December that responsibility for the decision support service would be moved from the Courts Service to the Mental Health Commission. This is in response to concerns expressed at the proposal to locate the decision support service in the Courts Service. The original decision to locate the Office of Public Guardian, as it was then called, in the Courts Service was based on the view that the Office of Wards of Court could form the kernel of the staff of the new body. However, stakeholders have pointed to the desirability of moving away from the Office of Wards of Court to avoid the false impression that wardship could be perpetuated by another name. Instead, as I have made clear, wardship will be abolished for adults once existing wards have been discharged or migrated to the new support options.

The proposal to locate the decision support service in the Mental Health Commission will create 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 for the decision support service is because the commission has expertise on key functions that will be undertaken by the new body. It has experience of providing information and of preparing codes of practice.

It has experience of 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 that is needed by the new body.

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. Some rebranding may be needed to make this distinction clear. This will need to be worked out with the Mental Health Commission over the next months. While logistics and timing will need to be worked out with the Mental Health Commission, this is a very good solution which draws on the experience of a very skilled organisation, yet allows a new architecture to be established.

The proposed amendments are consequential on the Government's decision to move the decision support service to the Mental Health Commission. All references to the board of the Courts Service are proposed to be replaced by references to the Mental Health Commission. Many references to the Minister for Justice and Equality are proposed to be replaced by references to the Minister for Health as the Mental Health Commission comes within his or her remit.

Amendment No. 1 proposes to amend the provisions concerning commencement of the Bill. It proposes that the Minister for Health be consulted on the commencement of the Bill in view of his or her responsibility for the Mental Health Commission. As the decision to move the decision support service to the Mental Health Commission was only taken on 8 December, the Mental Health Commission will need time to prepare for this new task. As a result, I envisage that the legislation will not be commenced immediately. It is anticipated that the Bill, if enacted, will be commenced in the second half of 2016 to coincide with the finalisation of preparations to ratify the UN Convention on the Rights of Persons with Disabilities. I never thought we would get to that day.

Amendment No. 2 proposes to delete the reference to the board of the Courts Service as it will now not be responsible for the decision support service. Similarly, the reference in amendment No. 3 to the Courts Service Act of 1998 is proposed for deletion as no change is now envisaged to that Act.

Amendments Nos. 73 to 75, inclusive, 77, 81, 82, 84, 87 and 89 replace the references to the Courts Service with the Mental Health Commission.

Amendment No. 78 proposes that the Minister for Health rather than the Minister for Justice and Equality will determine the terms and conditions of the director of the decision support service. This is because the Minister for Health has responsibility for the Mental Health Commission and the resources allocated to it.

Amendment No. 79 proposes that the director will be a member of staff of the Mental Health Commission rather than of the Courts Service, reflecting the transfer of responsibility to the Mental Health Commission. Similarly, amendment No. 80 proposes that the staff of the decision support service will be staff of the Mental Health Commission. It also proposes that the provisions of Part 3 of the Mental Health Act 2001, which deal with the terms and conditions of the staff of the Mental Health Commission, will apply also to the staff of the decision support service.

Amendment No. 88 proposes that any adviser engaged by the director will be subject to the prior agreement of the Minister for Health in view of his or her responsibility for the Mental Health Commission and the resources available to it.

Amendment No. 90 proposes that the Minister for Health would also have to give approval to the remuneration and allowances for special visitors and general visitors.

Amendments 91, 92 94 to 96, inclusive, 99, 100 and 103 propose to replace all references to the board of the Courts Service with the Mental Health Commission or the commission. It is proposed that the Mental Health Commission will have the same role as was foreseen for the board of the Courts Service to receive a copy of the annual report prepared by the director on the activities of the decision support service. It will also receive a copy of the report to be prepared by the director within two years of the commencement of Part 9 on the effectiveness of the functions specified for the director under this legislation. In addition, it will receive a copy of the report the director must produce after five years reviewing the performance of his or her office and on the functions set out under the Bill.

Amendments 93, 97, 98, 101, 102 and 104 propose that the commission will be obliged to forward these reports to the Minister for Health in view of his or her responsibility for the Mental Health Commission. Amendment No. 105 proposes that the Minister for Health rather than the Minister for Justice and Equality will be required to send a copy of such reports to the Oireachtas. No change is proposed to the provision requiring the reports to be laid before the Houses of the Oireachtas.

The proposed transfer of responsibility for the decision support service from the Courts Service to the Mental Health Commission will require a series of amendments to section 86 which relates to codes of practice.

Amendment No. 106 proposes to delete paragraph (b) of subsection (3) as it is no longer necessary for the Mental Health Commission to be consulted on codes of practice since the decision support service will be located in the Mental Health Commission. This means that the Mental Health Commission will now be centrally involved in the preparation of these codes of practice.

Amendment No. 107 proposes that where the decision support service produces codes of practice on non-health care matters, these should be done in consultation with the Minister for Health in view of his or her responsibility for the Mental Health Commission. The Mental Health Commission would be consulted instead of the board of the Courts Service. The Minister for Justice and Equality's consent would continue to be required in view of his or her policy responsibility for the Bill.

Amendment No. 108 proposes that where the decision support service produces codes of practice on health care matters, these would be done with the consent of the Minister for Health in view of his or her policy responsibility for health care matters and for the Mental Health Commission. It is proposed that the Minister for Justice and Equality would be consulted in view of his or her policy responsibility for the legislation. The Mental Health Commission would be consulted instead of the board of the Courts Service.

Amendments Nos. 109 and 111 replace the references to the board of the Courts Service with the Mental Health Commission.

Amendment No. 110 proposes to delete section 87 of the Bill as the Courts Service will not have responsibility for managing the functions assigned to the director of the decision support service.

Amendment No. 113 proposes that the review of the functioning of the Bill when enacted would be undertaken in consultation with the Minister for Health in view of his or her responsibility for the Mental Health Commission. As the Commission will now have responsibility for the decision support service, the views of the Minister for Health will be crucial in determining how the Bill, when enacted, functions in practice.

On this grouping of amendments, I am trying to work out the implications and I would not mind being clear. I appreciate that concerns were expressed previously about the placement of the decision support service within the Courts Service. Principally, the concern was that the decision support service would not be sufficiently independent as a component of the Courts Service and there was a question whether its work would be open to scrutiny by the Ombudsman. I am trying to work through why moving the decision support service to the Mental Health Commission will resolve this problem because it places the service within the remit of the Department of Health rather than the Department of Justice and Equality. Since legal capacity matters should probably be regarded as a matter for the Department of Justice and Equality, I question this move. Could this lead to confusion because decision support issues might be confused with mental health issues? Since the remit of the decision support service is much broader than mental health, I wonder about establishing it under the Mental Health Commission.

I would have thought that this function would have been better to be established as an independent authority similar to the National Disability Authority with reporting responsibilities to the Department of Justice and Equality. I imagine it is because the move is being made now on Report Stage that there are questions from those who have not been consulted. There has been extensive consultation on the Bill. We are jumping the last hurdle and I wonder whether this is the right one that we should be jumping. I appreciate the placing of the function in the Courts Service was not right, but I do not know whether we are moving it to the right place. My concerns are echoed by many civil society organisations, persons with disabilities and their representatives. Why are we doing this now when the preference is to have an independent body that would be within the remit of the Department of Justice and Equality? Such an independent body would be more appropriate. It would be more in keeping with the spirit of the Bill. That is where my difficulties lie on this grouping of amendments.

Cuirim céad fáilte roimh an Aire Stáit arís. It is a good day to be debating the Bill and I hope we will get through it in an expedient manner.

I concur with Senator Jillian van Turnhout on the issues she is raising because I note that a number of organisations, such as Inclusion Ireland, have raised this as a particular issue. The thought of placing the decision support service within the Courts Service was not one with which they were comfortable. The organisations that have been in contact with us have asked for an office with an independent function separate from the Courts Service with a director recruited through the Public Appointments Service. This would afford independence, transparency and an opportunity for a fresh start with the new support structure. If the Minister of State has taken this step, why did she go with the Mental Health Commission rather than set it up as an independent body in its own right, which is what was called for?

I welcome the Minister of State. It is a bit odd - I have commented on this before - that we have 113 amendments at this very late Stage, Report Stage, and all but two of them are Government amendments. That is astonishing. I hope the Minister of State will convey this to her colleagues and to those involved in the Civil Service in the drafting. It is both a drafting and a political matter. It is shameful that we have this kind of thing, a backlog or a furious push of legislation every Christmas. Why does it happen? It is bad management and it should be stopped.

With regard to the particular import of these amendments, they are not all drafting amendments. Some of them are and some of them are just changing words, that is, tinkering around. Even though there is quite a considerable number of them, I suppose that is fair enough although, God knows, one would imagine it would have been spotted before now.

One of the principal amendments in the entire range deals with taking the function out of the Courts Service and putting it into the Mental Health Commission. I have been contacted by some of the relatives and they are not particularly happy about this. They were not happy about it being part of the Courts Service because of their experience with wards being referred to as lunatics and all this unhelpful language.

I am asked if the Minister of State knows what she is doing. For many of these people it is not so much a question of mental health in terms of a disability, mental functioning or mental capacity. Many of these people are the way they are as a result of accidental injury. It is acquired brain damage and the relatives are fairly sensitive about this and do not feel it should come under the Mental Health Commission. It is not a question of mental health, depression or this, that or the other, it is acquired brain damage. One of these people said to me that all those who have family members who are wards of court have said that for them to have confidence in the new system, it would need to be delivered outside the Courts Service, preferably as an independent stand-alone service responsible to the Government directly. This person will be pleased that it is moved out of the Courts Service but I am not sure the person is terrifically chuffed by the idea of it being put into the mental health area. This person wonders if the Minister of State has looked at the question of the fully independent provision of this kind of service. This person welcomes the move away from the Courts Service but finds it difficult to understand why it comes under the remit of the Mental Health Commission. The premise of the Bill is that it would be delivered under the Courts Service with the director of the decision support service being appointed by the Courts Service and being responsible to the Courts Service. The person I referred to is concerned about that.

I have a bit of a grouse which the Minister of State need not bother to refer to because we have been through this. I point out again the enormous constellation of amendments, all but two of which are from the Government. The other issue is that I am concerned at the introduction, at this late Stage, of a move, without consultation with the relatives, as I understand it, from the Courts Service, which is welcomed.

As somebody said to me years ago when they were talking about a translation of Finnegans Wake, "it is being translated into Japanese, but out of what?". In the case of this service, it is going out of the Courts Service, but into what? Most of the relatives would like it to be a fully independent service.

Even though this legislation is groundbreaking, and that view is shared by everyone else in this House, I received a telephone call today from a lady whose name escapes me but who was very distressed about the transfer of this service from the Courts Service to the Mental Health Commission. I thought all non-governmental organisations were in support of that move. I do not doubt that the Minister of State will be able to reassure me with regard to two slight concerns. If the Mental Health Commission is enshrined in this legislation, will further legislation be required if a future Government decides to change the name of the commission? Language is important. The Title of this Bill has evolved over the years. It is now known as the Assisted Decision-Making (Capacity) Bill 2013. I do not doubt that the name of the Mental Health Commission could change in years to come. I do not think it matters as long as the job is done and done well. People can be too zealous about what bodies are called and what Departments they fall under. I suppose people have concerns, but sometimes it is better to go with a proposal on the basis that it is better than what is there at the moment. We could look for perfection, but I do not think perfection exists in life. As I said to the very nice lady who called me earlier today, this legislation can be amended. She did not seem to grasp where I was coming from. She said this is going to cover the whole legislation. The big story here is that we have moved from where we were coming from to where we are now with this legislation. I appeal to Members to get this legislation over the line. It will be six months before it is enacted. We need to get it over the line because people out there are waiting. We have been very careful with the use of language and all of that.

May I seek a little further information on foot of what Senator Martin Conway has said? If it "will be six months before it is enacted", will it fall with the Government? We need to have an election in the next six months.

It will be six months before it is commenced.

I see. The Senator said "enacted".

That is the genesis of my point.

I compliment the Minister of State on the work she has been doing for the past two or three years. Perhaps she has been working on this matter for even longer than that without my knowing about it. To say that this legislation is groundbreaking is an understatement because there is so much good in it but a worrying feature of the Bill has come to light today. I refer to the transfer of the decision support service to the Mental Health Commission. I was listening to the Minister of State on my monitor when I was upstairs. I know people think we are asleep when we are not in the Chamber. I did not hear a satisfactory explanation from the Minister of State and I would like to hear such an explanation now. I agree with the Minister of State most of the time because she comes forward with sensible solutions. I want to know the reason for this decision. It really changes the whole aspect from the justice system to the Mental Health Commission. Obviously, the Minister of State has a good reason for doing this and I want to hear that reason. I received a telephone call from a lady called Mary Farrell. She might have contacted Senator Martin Conway also. I have also been contacted by Tallaght Trialogue and various other individuals and groupings who are concerned that such a major change is being made at this late stage of the legislative process.

The Minister of State is to be congratulated because this Bill does a great deal to change what has been there since the 1800s. There are many people in wardship who do not have mental problems. We are lifting the stigma of mental health. We should all work towards that. Mental health should be like having a headache. No stigma or anything else should be attached to it. I know from the various e-mails and telephone calls I have received that people with brain injuries who have never had any mental capacity issues and their carers and representatives are not at all pleased. As Senator David Norris said, an acquired brain injury is not a mental illness.

I look forward to the Minister of State's explanation. Like other Senators, I want the Bill to be passed. It is past time this was done. We have been waiting a long time for the Minister of State to come here and progress the Bill. While I would not like it to be delayed, I would appreciate a good explanation in respect of the issue of independence and the Courts Service. Are we looking at a worse scenario? The position regarding the Courts Service was not good. There is obviously a good explanation for the transfer and I want to hear it.

I disagree with Senator Martin Conway. It is very important to reach some sense of perfection, given that human rights is about this. We must start at the top, not half way or three quarters of the way up. Heterosexual men were very good at perfection throughout my life. That is where I learned it. I had grave difficulty believing women were perfect. Men were telling me for years that they were.

I always believed they were.

Given that the core of the Bill is about human rights, we start at a level of perfection and fall as fragile human beings. We do not start half way up a ladder.

I thank some of the experts in the Visitors Gallery and people such as Mary Farrell. Many of us can be educated and informed by those who live with what the Bill is trying to provide for and whose lives are caught between the devil and the deep blue sea. Mary Farrell is in her 70s and is caring for her 47 year old son who is not well. We must be very careful how we deal with this. As my colleague, Senator Jillian van Turnhout, said, it is not a simple amendment but a huge and odd one. The premise of the Bill was centred on the Courts Service. Why was it changed and moved to the Mental Health Commission? Who is going to report to whom and about what regarding discharge orders, orders for decision making and representatives? I thank the experts in the Visitors Gallery and people such as Mary Farrell, who keep us informed about the reality of life out there, where Bills must be changed. That is what we are here for, as a conduit to make their lives full of the promise of human rights, and the perfection of it, not half way up the ladder, as Senator Martin Conway suggested.

The ideal would be a stand-alone agency. There is no disagreement about it. Unfortunately, the Government has committed not to create any new agencies. Therefore, we had to find something more appropriate. What Senator Marie-Louise O'Donnell said about human rights is important. Those in the Mental Health Commission are the people who know the most about human rights. We are talking about a rebranding exercise whereby we will have the Mental Health Commission and the decision support service. While they will not be the one agency, they will have all the expertise and knowledge necessary. It is about a much wider group of people than those with mental health difficulties. That is why I am glad that Senator David Norris raised the issue of acquired brain injury.

The legislation has been long awaited. Although Senator Martin Conway said it had been 20 years, it has been much longer, albeit not in the guise which it takes now, but in terms of what is being spoken about and how we deal with people who, from time to time, perhaps not entirely, lack capacity. None of us here can say there have not been times when we lacked capacity. Regardless of whether they were self-inflicted, there clearly have been such times. Several weeks ago, some people came to me and said a person they loved very deeply had acquired a brain injury, although not a very substantial one. The greatest difficulty with brain injury is that while sometimes it does not look substantial, it can be a great imposition. These people were soon to return to court to decide whether the person would be taken in as a ward.

The judge in the case, showing the wisdom of Solomon, asked whether they would not prefer to have an adjournment and wait for this legislation. It will cover everyone. In respect of reporting, information and supervision, it will be the director of the service that makes those decisions. From time to time the director may have to go to the courts to have the decision implemented but, whoever he or she is, the director will make the decisions. It is human-rights-based and that is vitally important. It would have been lovely to be able to tell Senators we were setting up an entirely independent agency-----

To whom did the Government give an undertaking it would not create any more stand-alone services?

It gave a commitment not to establish any further bodies. Does the Senator remember?

Is the Minister of State talking about quangos?

That was an undertaking given to the media.

If it is happening here, it was clearly not just to the media.

Was it an election pledge?

No. It was decided afterwards.

Was it in the programme for Government? It was stated that no further independent bodies would be created.

Please allow the Minister of State to respond.

That will be for the next Government. Perhaps in the future somebody will make a different decision but, as it stands, we had to decide what the best fit was for this. We were told that the Courts Service was not the best fit because we were extinguishing wards of court. We had to see who had the expertise and who was committed to human rights with regard to capacity. This is about the ability to make decisions rather than not making decisions, so we had to look at the best possible fit. It will be about rebranding.

Will the Minister of State address the question of the role played by the Mental Health Commission? Will it have a directing role? Will it be responsible? How independent will it be?

I have four and a half years of experience with the Mental Health Commission and they are probably the most independent group of people I have ever come across. It is financed and resourced by Government but has no problem telling it exactly what is wrong, where something is wrong and what it should do to put it right. In the first instance the director will have to report to the Mental Health Commission and the commission will have to report to the Minister for Health. The Minister for Justice and Equality, whoever that may be, will also have an input because the legislation comes under justice and equality. The director, however, will be the person responsible for implementation and oversight. The people he or she employs or chooses to engage with will be responsible as decision makers, co-decision makers and assistant makers, as will the person who makes the appointment and the people who make the complaint. If the director suspects there is something to be investigated they will carry out an investigation, even if no complaint is made.

We have to find a home for this because we do not have the resources, or the agreement from the Government, to provide a stand-alone agency. This group sits before me regularly and tells me what they think is wrong and what is not wrong, unlike other groups who might not feel they can do so because of where their resources come from. They take their responsibility very seriously. They are there to protect a vulnerable group of people and, in respect of capacity, that is what we are talking about. Yes, it should be an independent agency. That would be great but we cannot provide that. In the future, another Government may make a different decision, but I have to make the call on it now.

Would it require legislation?

Yes, it would require a complete new section, but that is not an option for me. I understand the difficulties and I understand the perception, but in negotiating this with the Mental Health Commission we need to ensure this particular area is separated out and is seen to be separated out while continuing to operate as a separate entity within the remit of the Mental Health Commission.

Is amendment No. 1 agreed to?

I had some specific questions about reporting. Will this have its own distinct funding? This is critical. We are all very aware of the pressures on the Department of Health in respect of funding. In moving from justice to health, I am very fearful about this issue. What is the timeline for the rebranding?

We have to give the Mental Health Commission time because it knows what we want it to do. That is why commencement will not take place for six months. The Mental Health Commission submits its budget every year in the same way as does any Department. It has done it for this year and the funding will be distributed accordingly. The additional funding will have to be negotiated but we know it will cost extra money and additional staff will be needed. When the Mental Health Commission submits its budget every year, that will be part of it, and the commission is good at this. There has been a significant change in respect of tribunals, which will be appreciated. We have to ensure the funding is in place in order that it works efficiently. I hope this will be an active section in terms of information, education and advice. I hope there will not be so much activity in the way of complaints but that it will be very active in the scrutiny of decision making and agreements. There is no question about the money being made available, as it is something we have to do if we are serious about this legislation.

Amendment agreed to.
Government amendment No. 2:
In page 10, to delete line 14.
Amendment agreed to.
Government amendment No. 3:
In page 10, to delete line 25.
Amendment agreed to.

Amendments Nos. 4, 9, 10, 12, 14 to 18, inclusive, 20 to 25, inclusive, 35 to 37, inclusive, 39, 43, 45, 56, 49, 51, 53 and 56 are drafting amendments and may be discussed together.

Government amendment No. 4:
In page 11, in the definition of “enduring power of attorney” inserted by amendment 7 at Committee Stage in the Seanad, to delete “section 51” and substitute “section 51(2)”.

Amendments Nos. 4, 9, 10, 12, 14 to 18, inclusive, 20 to 25, inclusive, 35 to 37, inclusive, 39, 43, 45, 46, 49, 51, 53 and 56 are all technical amendments to improve the drafting of the Bill and to make the intent of the provisions clearer.

There is a typing error. After No. 45 it should be No. 46, not No. 56.

Thank you, a Leas-Chathaoirligh. Well done.

It is because it is consecutive. I apologise for intervening.

I have amendments Nos. 43, 45-----

As amendment No. 56 is included twice, I am just amending the numbers on the list.

It is corrected on my list also.

I will correct my document. If I do not correct it, the learned Clerk of the Seanad will ensure it is corrected.

That is true. These are all technical amendments to improve the drafting of the Bill and to make the intent of the provisions clearer. Amendment No. 4 proposes to tie the definition of "enduring power of attorney" to the provisions of section 51(2) as these provisions specify that the enduring power must be conferred in writing in an instrument that is in compliance with the requirements of Part 7.

Amendments Nos. 9 and 10 propose to move the phrase "to the court" within section 12(3) in the interests of greater clarity. Amendment No. 12 proposes to modify the penultimate line of section 16(8) to make the provision clearer.

Amendment No. 14 proposes, in the interests of clarity, to amend the provisions inserted on Committee Stage. The aim of the amendment is to make clear that the statement to be signed by the co-decision-maker must indicate that he or she undertakes to act in accordance with his or her functions as specified in the co-decision-making agreement. On review of the amendments proposed on Committee Stage, it was considered that the formulation proposed was not sufficiently tight to make clear to a co-decision-maker that he or she must act in accordance not only with the provisions of the Bill generally but specifically with the provisions of the co-decision-making agreement as they are the expression of the will and preferences of the appointer.

Amendment No. 15 proposes to delete the word "time" from section 21(3) as amended on Committee Stage. When reviewing the Bill, it was considered that the word "time" was not necessary in the provision.

Amendment No. 16 proposes to delete the reference to subsection (3) as subsection (3) was deleted in the amendments agreed on Committee Stage. As a result of that deletion, the court will now be able to make a declaration as to whether a person has or lacks capacity to create or revoke an enduring power of attorney.

Amendments Nos. 17 and 18 propose to amend subsections 35(3) and (4) as amended on Committee Stage. When reviewing the Bill for Report Stage, it was considered that it would be preferable to insert the phrase "ensure that" in order that the court is clear as to its obligations. It must ensure the functions of a decision-making representative are not inconsistent with an advance health care directive or with an enduring power of attorney where either is in place.

Amendment No. 20 proposes to correct a typographical error and to make the provision more precise. Amendment No. 21 proposes to correct an error in the amendment proposed on Committee Stage to section 37(6). It is proposed to delete the phrase "to the court" as otherwise the court would notify itself of its disqualification of a decision-making representative.

Amendment No. 22 is intended to tighten the provisions which allow for the use of restraint in very exceptional situations. It proposes to delete the phrase "pursuant to this section" to make clear that the restrictions on the use of restraint apply to all instances of restraint used or authorised by a decision-making representative. The Bill requires that the decision-making representative must cease to use or authorise restraint when the restraint is no longer necessary to prevent an imminent risk of harm to the relevant person or to another person.

Amendments Nos. 23, 24 and 25 propose to amend section 40 as inserted by amendment No. 161 on Committee Stage to make the provisions more precise. No change of policy is envisaged. Amendment No. 25 corrects a typographical error in section 40 (4).

Amendments Nos. 35 and 36 are technical drafting amendments that delete the definitions of "attorney" and "enduring power" from the new section 50 which was inserted into the Bill by amendment No. 170 on Committee Stage. The definitions are not required in section 50 because they are defined in section 2, which is the general interpretation section of the Bill, as amended by amendments Nos. 2 and 7 on Committee Stage.

Amendment No. 37 replaces superfluous text with text that clarifies that a person who is to be appointed as an attorney of an enduring power must be over 18 years of age.

Amendment No. 39 is a technical drafting amendment. It clarifies the intent of the provision which is that the attorney must provide a statement in the instrument creating the enduring power stating that he or she understands and undertakes to act in accordance with his or her functions as specified in the instrument. It clarifies that the functions of an attorney are set by the donor in the instrument creating the enduring power.

Amendments Nos. 43, 45 and 49 are technical amendments proposing to delete unnecessary text. Amendment No. 46 is a technical amendment that clarifies the intent of the provision. Amendment No. 51 is a technical amendment to insert text that was omitted in error.

Amendment No. 53 is a technical amendment that clarifies the intent of the provision. It clarifies that the director is forming a view that the necessary criteria apply at the time of his or her review of the application to register an instrument creating an enduring power of attorney. Amendment No. 56 is a technical amendment that clarifies the intent of the provision.

Amendment agreed to.

Amendments Nos. 5, 7, 8, 11, 26 to 28, inclusive, 38, 40, 44, 47, 52, 54, 57, 66, 67, 72 and 76 are technical amendments and may be discussed together. Is that agreed? Agreed.

Government amendment No. 5:
In page 11, line 28, to delete “(9)” and substitute “(10)”.

These are technical amendments to correct incorrect cross references or typographical errors. Amendments Nos. 5 and 7 propose to correct incorrect cross-references. These follow from the Seanad's agreement to include an additional guiding principle on Committee Stage on the information obligations on interveners.

Amendment No. 8 proposes to correct an incorrect cross-reference, as do amendments Nos. 26, 27 and 28. Amendments Nos. 11, 38, 40, 44, 47, 52, 54, 67 and 76 are technical amendments to correct typographical errors. Amendment No. 57 is a technical amendment to correct an incorrect cross-reference in the new section 63.

Amendment No. 66 is a technical amendment to restructure paragraph 2 in subsection (2) of new section 66 to clarify the intent of the provision. The amendment also provides for the court to be satisfied that coercion was not used to force the donor to execute the power before it makes a determination whether an instrument creating an enduring power should be registered.

Amendment No. 72 proposes to address a typographical error, while amendment No. 76 proposes to correct a punctuation error.

Amendment agreed to.

I move amendment No. 6:

In page 15, to delete lines 10 to 36 and substitute the following:

“3. (1) Legal capacity may be exercised:

(a) by the relevant person with decision-making supports as needed (including a decision-making assistant) and/or reasonable accommodation; or

(b) by the relevant person and their co-decision maker, acting jointly; or

(c) in a situation of last resort, where all efforts to ascertain the relevant person’s will and preferences have been made and the relevant person’s will and preferences remain not known, legal capacity may be exercised by the person(s) selected to represent the relevant person in exercising the relevant person’s legal capacity (i.e. decision-making representative, attorney, or patient-designated healthcare representative in advance healthcare directive).

(2) Where legal capacity is exercised with the support of a decision-making assistant, codecision-maker, or is being made by a person selected to represent the relevant person (decision-making representative, attorney, or patient-designated healthcare representative), and where the relevant person’s will and preferences are not known, the decision shall be guided by the individual’s best interpretation of the relevant person’s will or preferences and how these are to be applied to a specific decision(s).

(3) In applying subsection (2), decision-making assistants, co-decision-makers and persons selected to represent the relevant person must be able to provide a reasonable account of how this interpretation was arrived at.”.

I propose this amendment to change the definition of "capacity" in the Bill and to move away from a functional test of mental capacity which is used in the current text of the Bill to deny the legal capacity both of adults with disabilities or mental health experiences and of older people. The amendment would replace the definition of "mental capacity" in the Bill with a recognition of the legal capacity which all adults enjoy.

This amendment is based on the explicit recognition of legal capacity and the principle set out by the UN Committee on the Rights of Persons with Disabilities that a functional assessment of mental capacity should never be used to restrict or deny a person’s legal capacity, even in respect of a single decision. The amendment draws on a proposal contained in A Statutory Framework for the Right to Legal Capacity and Supported Decision-Making by the Canadian Association for Community Living, CACL, which was published in 2012. The CACL was a key actor in the reform of Canadian adult guardianship law in the 1990s.

It resulted in innovative statutory mechanisms such as co-decision-making and representative decision-making agreements, which influenced the Assisted Decision-Making (Capacity) Bill here.

Functional assessments of mental capacity are now understood to violate human rights. In the terms of the United Nations Committee on the Rights of Persons with Disabilities, functional assessments of mental capacity are "discriminatorily applied to people with disabilities". In April 2014 the committee stated:

[The] functional approach is flawed for two key reasons. The first is that it is discriminatorily applied to people with disabilities. The second is that it presumes to be able to accurately assess the inner-workings of the human mind and to then deny a core human right – the right to equal recognition before the law – when an individual does not pass the assessment. In all these approaches, a person's disability and/or decision-making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 does not permit such discriminatory denial of legal capacity, but rather requires that support be provided in the exercise of legal capacity.

Instead of requiring a person who needs support with decision-making to undergo an assessment of his or her mental capacity, these supports should be provided for the person to avail of at his or her own discretion. The availability of supports should also be combined with a parallel process to explore the person's will and preferences, something we have debated quite a lot on the floor of the House, in order that the decision the person wishes to make becomes clear. This approach avoids any need for an assessment of mental capacity.

Section 3 makes a person's ability to enter into different support arrangements contingent on the individual's mental capacity. This is quite a high standard for an individual to reach and will mean that some people will not be found eligible to make assisted decision-making agreements and co-decision-making agreements, even where this is the form of support the individual and his or her supporters would most likely use.

Under the Bill in its current form, the term "presumption of capacity" is used to try to prevent discriminatory application of functional assessments of mental capacity. However, two international human rights scholars, Oliver Lewis and Michael Bach, stated at a meeting in Belfast in April 2014 that a presumption of mental capacity is meaningless as it does not help to protect the individual's human rights. They argue that the right to equal recognition before the law, from which the right to legal capacity stems, is a guarantee, not a presumption. In contrast, a presumption can be rebutted if evidence is provided to demonstrate that a certain individual is not worthy of equal recognition before the law.

This amendment is required to ensure Ireland meets its obligations under international human rights law and will, upon ratification, comply with Article 12 of the UN Convention on the Rights of Persons with Disabilities, which we all wish to do. That is why I have tabled the amendment.

I second the amendment. Through the Chair, I ask Senator Jillian van Turnhout or the Minister of State whether the term "legal capacity" is defined in the Bill already.

Well then the amendment also needs a definition of "legal capacity" because, as I understand it, Senator Jillian van Turnhout is moving in certain circumstances away from mental capacity towards legal capacity, and she cites in support of her evidence two human rights scholars who have described mental capacity in these instances as being meaningless. The amendment requires also a definition.

It seems to be a reasonable amendment because it is only with regard to a situation of last resort, in other words, where everything else has failed and we have a situation where the individual centrally concerned does not have the capacity, whether legal or mental, to make a decision, so no decision is made and the person is left in limbo. We obviously need somebody to be able to make that decision. This is where the phrase "legal capacity" comes in. The history of the patient and his or her past decisions and attitudes is used to assess what type of decision he or she might have made in the circumstances. In addition to this, under subsection 3 people must be able to provide a reasonable account of the reasons they arrived at a decision. This seems to be a reasonable amendment. It covers a situation where no decision involving the person can be arrived at.

This deals with legal and mental capacity and assisted decision-making, and I have some remarks on what the Minister of State said about the independent agency. Let the record show the Minister of State said of course it should be an independent agency. This is a very honest point and I salute the Minister of State for making it, but in legislation and in the Seanad, what we need is to hold the Government to what is best for the citizen and not what was said in a radio interview as a result of a media blitz on quangos. People say they will never establish another one. Really? Not even if it is necessary? Not even if it is in the best interests of patients? The Minister of State said it was the best interests of patients. I do not think this is proper; we should have what is best for the individual. The Minister of State also failed to give what, to my mind, was adequate reassurance about the funding. She said it would happen if people believed in this, and there is an element of conditionality already. Not everybody, presumably, does believe in this. I am a little concerned. The amendment goes a long way towards strengthening the Bill and I certainly support it.

Senators Jillian van Turnhout and Katharine Zappone propose in amendment No. 6 to change the approach to capacity in section 3. The Bill is based on the premise that a person has capacity unless otherwise determined. We did not think it needed to be explicitly spelled out. Legal capacity, as I previously indicated, is implicit. I agree with most of what Senator David Norris said, except that the amendment is necessary. Section 8 provides for a series of important principles which require interventions to intrude as little as possible on a person’s rights. It also provides that the intervener must pay due regard to the person's will and preferences. They are placed at the heart of the Bill. In a situation where someone cannot clearly make a decision, it must be made by someone who has known the person, or can presume what the person's will and preference would have been in certain circumstances.

The Bill is intended for a large potential target audience. It includes a range of support options for people who have capacity difficulties but who can still exercise capacity. It proposes the assisted decision-making option to support them in taking their own decisions. The co-decision-making option has been moved out of the courts, and is a second option whereby the person can take decisions jointly.

The Senators' intentions in their amendment are already encompassed in the architecture of the Bill. However, the capacity test, which they propose to delete, is a vital part of that architecture. If a person’s right to the presumption of capacity is to be guaranteed, it follows that the appointment of a decision-making representative, an attorney or a designated health care representative can be undertaken only when the person has been found to lack capacity. This is an essential point. There has to be a solid legal basis if one person is taking decisions on behalf of another person. We have had this discussion here on many issues in the past. This cannot be done lightly. I agree with the Senators that, as they say in their amendment, this is a situation of last resort.

It is not feasible to limit the decisions needing to be taken on behalf of a person lacking capacity to those on which the person’s will and preferences are known. I will use the same example as I gave last week.

A man who is in a persistent vegetative state since the age of 20, for instance, may have expressed no views on the sale of a property that has come to him on the death of a family member. There may be absolutely no way of ascertaining his will and preferences. A similar set of circumstances may apply for some people with dementia.

The existing provisions strike the right balance between the assertion of the person’s presumption of capacity and the decisions needing to be taken as a last resort when the person has lost capacity. The capacity test is a key part of that process. It has been refined to make clear that the test is time specific and issue specific. This is essentially where we have gone further than anywhere else. We do not expect people in these circumstances to have capacity across a range of areas; we are talking about particular decisions that need to be made in particular circumstances. That is essential and a key component of this Bill. It is about enabling people to make decisions for themselves on particular issues at a particular time. That is considerably important, but we cannot remove the capacity test and presume capacity when people may not have it in certain circumstances. As the removal of the capacity test could create many unintended consequences, I cannot accept the Senators' amendments. I hope my explanation rings true for her.

This amendment recognises that everyone can have legal capacity, regardless of his or her decision-making ability but that some may need support in that. I tabled it in order that we would comply with Article 12. I feel it was needed. I am very conscious that there is continual change in this area. I was trying to push the train further down the tracks because I believe the matter of legal capacity will become increasingly significant. We do not define "mental capacity" in the Bill. In answer to Senator David Norris, I did not see the necessity to define "legal capacity" because I felt the amendment dealt with it comprehensively.

I will not press my amendment because I want the Bill to be passed. However, this is a hurdle we still have to go over. It is part of the journey of understanding people's will and preferences, and of finding an appropriate mechanism for legal capacity. That is what I was trying to achieve with my amendment but I appreciate where we are.

Amendment, by leave, withdrawn.
Government amendment No. 7:
In page 17, line 8, to delete "subsections (2) to (9)" and substitute "subsections (2) to (10)".
Amendment agreed to.
Government amendment No. 8:
In page 21, in subsection (4) of the section 13 inserted by amendment 35 at Committee Stage in the Seanad, to delete "subsection (6)" and substitute "subsection (5)".
Amendment agreed to.
Government amendment No. 9:
In page 22, in subsection (3) of the section 12 inserted by amendment 45 at Committee Stage in the Seanad, to delete "to the court".
Amendment agreed to.
Government amendment No. 10:
In page 22, in subsection (3) of the section 12 inserted by amendment 45 at Committee Stage in the Seanad, after "founded" to insert "to the court".
Amendment agreed to.
Government amendment No. 11:
In page 24, line 24, to delete "of" where it secondly occurs.
Amendment agreed to.
Government amendment No. 12:
In page 27, in the subsection (8) inserted by amendment 65 at Committee Stage in the Seanad, to delete "an action pursuant to paragraph (a) or (b)" and substitute "such acquiescence or signature, as the case may be,".
Amendment agreed to.
Government amendment No. 13:
In page 27, in the subsection (8) inserted by amendment 65 at Committee Stage in the Seanad, to delete "harm" and substitute "serious harm".

I have responded to the concerns raised by Senator Jillian van Turnhout. I am sure she was thinking at one stage that none of her remarks would ever penetrate. On Committee Stage I responded by proposing to insert the word "serious" in the provision. As proposed, a co-decision-maker now has to agree to the decision of a relevant person unless it would cause serious harm to the person or to another person. This amendment respects the right of the relevant person to take his or her own decisions, where at all possible. It will make it more difficult for a co-decision-maker to refuse to agree to a particular decision.

Of course, I would have preferred the words "imminent" and "grave harm" but I thank the Minister of State for this amendment. I appreciate that she has included the word "serious" and thank her for doing so.

Amendment agreed to.
Government amendment No. 14:
In page 30, lines 20 and 21, to delete "the functions of a co-decision-maker under section 16" and substitute "his or her functions as specified in the co-decision-making agreement".
Amendment agreed to.
Government amendment No. 15:
In page 33, in the text inserted by amendment 93 at Committee Stage in the Seanad, to delete "time".
Amendment agreed to.
Government amendment No. 16:
In page 44, line 4, to delete "Subject to subsection (3), the" and substitute "The".
Amendment agreed to.
Government amendment No. 17:
In page 45, in the subsection (3)(b) inserted by amendment 150 at Committee Stage in the Seanad, to delete "that" and substitute "ensure that".
Amendment agreed to.
Government amendment No. 18:
In page 45, in the subsection (4)(b) inserted by amendment 150 at Committee Stage in the Seanad, to delete "that" and substitute "ensure that".
Amendment agreed to.
Government amendment No. 19:
In page 47, to delete lines 8 to 17.

Amendment 19 proposes to delete subsection (14) of section 35. Subsection (14) allows the court to revoke the appointment of a decision-making representative or vary the terms of the decision-making representation order if it considers that the representative is behaving in a manner outside the scope of authority conferred on him or her by the court. The deletion is required because new section 41(5), which deals with complaints against decision-making representatives and which was inserted by amendment 162 on Committee Stage, allows the court to make a determination that a representative shall no longer act as a decision-making representative. The review of the Bill for Report Stage has indicated that subsection (14) is unnecessary as subsection (13) of section 35 already allows the court to vary or discharge a decision-making order or representation order.

Government amendment No. 24:

In page 53, in subsection (3) of the section 40 inserted by amendment 161 at Committee Stage in the Seanad, to delete "period to which the report relates" and substitute "relevant period".

Amendment agreed to.
Government amendment No. 20:
In page 47, in subsection (2) of the section 36 inserted by amendment 151 at Committee Stage in the Seanad, to delete "decision-making representative for" and substitute "a decision-making representative in respect of".
Amendment agreed to.
Government amendment No. 21:
In page 47, in subsection (6) of the section 37 inserted by amendment 152 at Committee Stage in the Seanad, to delete "and the court".
Amendment agreed to.
Government amendment No. 22:
In page 53, lines 11 and 12, to delete "the relevant person pursuant to this section" and substitute "a relevant person".
Amendment agreed to.
Government amendment No. 23:
In page 53, in subsection (2) of the section 40 inserted by amendment 161 at Committee Stage in the Seanad, to delete "as is" and substitute "than those".
Amendment agreed to.
Amendment agreed to.
Government amendment No. 25:
In page 53, in subsection (4) of the section 40 inserted by amendment 161 at Committee Stage in the Seanad, to delete "relates".
Amendment agreed to.
Government amendment No. 26:
In page 53, in subsection (7) of the section 40 inserted by amendment 161 at Committee Stage in the Seanad, to delete "subsection (5)" and substitute "subsection (5) or (6)".
Amendment agreed to.
Government amendment No. 27:
In page 53, in subsection (8) of the section 40 inserted by amendment 161 at Committee Stage in the Seanad, to delete "subsection (6)" and substitute "subsection (7)".
Amendment agreed to.
Government amendment No. 28:
In page 53, in subsection (9) of the section 40 inserted by amendment 161 at Committee Stage in the Seanad, to delete "subsection (7)(b)" and substitute "subsection (8)(b)".
Amendment agreed to.

Amendments Nos. 29, 30 and 112 are related and may be discussed together. Is that agreed? Agreed.

Government amendment No. 29:
In page 55, between lines 19 and 20, to insert the following:
"(a) in section 1 by inserting the following definition:
" ‘relevant person’ has the meaning it has in the Assisted Decision-Making (Capacity) Act 2015;".".

I propose to discuss amendments Nos. 29, 30 and 112 together.

Amendments Nos. 29 and 30 propose to amend the Civil Legal Aid Act 1995 with key new provisions on legal aid for relevant persons. The Bill, as published, eased the criteria for legal aid by disapplying the merits test that currently applies in the Civil Legal Aid Act 1995. This provision ensures that the Legal Aid Board will not refuse legal aid just because it believes a case has no chance of success.

Amendment 30 adds crucial new provisions. It proposes to insert a new subsection 3A into section 28 of the Civil Legal Aid Act 1995. This will have the effect of ensuring a relevant person who faces a court hearing to assess his or her capacity under Part 5 of the Bill will automatically qualify for legal representation regardless of his or her financial means. This provision will ensure a relevant person will have the right to legal representation from the Legal Aid Board where an application is made to the court concerning the person’s capacity.

The Legal Aid Board will assign a legal representative from a panel of specially qualified solicitors. This is a crucial new provision that will significantly enhance the rights of a person with capacity difficulties in terms of access to legal representation when his or her capacity is at issue. Amendment 29 is consequential on this proposal.

The key objective is to ensure that a vulnerable person has quick and automatic access to legal representation to defend their interests when his or her capacity is in question. This is what will be achieved by the provisions proposed. However, some of the relevant persons who will benefit from the provisions will have considerable assets and means. It is appropriate that they should pay for the cost of the service that is being provided to them if they have the necessary means. Accordingly, it is proposed to insert a new subsection 7A into section 33 and a paragraph (fc) into section 37(2) of the 1995 Act to provide for the possibility of recoupment.

These provisions will enable the Legal Aid Board to recoup its costs if the relevant person is over the income threshold. However, even where the relevant person may subsequently have to pay for the costs of legal representation, that person will still benefit from access to the services of specially trained solicitors and from the fee limits imposed by the Legal Aid Board. As a result, the person will have access to a specialist legal service for potentially lower costs than would apply if the person were to select legal representation independently. Obviously, a person in this situation will continue to be able to use his or her own solicitor if he or she chooses. There will be no obligation to use the services of the Legal Aid Board.

The final amendment proposes to insert a new paragraph (e) in the 1995 Act to transfer responsibility for legal representation of persons appearing at mental health tribunals from the Mental Health Commission to the Legal Aid Board. Amendment No. 112 also proposes to insert a new section into the Mental Health Act 2001 to achieve this objective. If these amendments are approved, the Legal Aid Board will assume responsibility for legal representation of those appearing at mental health tribunals. As under the current arrangement, the Legal Aid Board will assign legal representation from a panel of specially qualified solicitors. It is considered appropriate that the Legal Aid Board should take on this role because of its expertise in managing panels to provide legal representation for a range of legal aid schemes. The same protections and rights will apply for persons appearing at mental health tribunals as under the current system operated by the Mental Health Commission.

While we are transferring the decision support services to the Mental Health Commission we are transferring the legal representation element to the Legal Aid Board which has been looked for as long as I can remember. It is really necessary to move it into a more grounded and more appropriate space. In this case we are talking about people whose capacity is being challenged or who have to appear before a tribunal in respect of their mental health. It should not be the case that one is treated differently. As I said before, this is a significant move. I know Senator David Norris can get annoyed with us about changes at this late stage, but there are some changes that are very beneficial.

The changes, particularly in amendment No. 30, in regard to eligibility for legal aid are welcome, especially the acknowledgement that where the applicant is a relevant person he or she should not have to meet the requirements for financial eligibility in order to receive legal aid. This is vital to ensure effective access to justice under the Bill for people who are at risk of having their legal capacity denied.

I have one concern in regard to paragraph (d) of the amendment. Some guidance needs to be set out by which the board may seek to recover costs. I am not necessarily suggesting the Bill be changed but recovery of costs should only be done if the interests of justice so demand. For example, a person may not meet the criteria of financial hardship normally required to qualify for legal aid but if the board seeks to recover costs, this action might then financially cripple the relevant persons, especially if some of their main assets, such as the family home, would have to be mortgaged or sold to meet the retrospective costs of legal aid. I ask the Minister of State to consider guidance to the Legal Aid Board in relation to the recovery of costs.

A number of amendments have been tabled. My question goes back to an amendment tabled by Senator David Norris on the previous day on legal representation afforded to people if their funds are dwindling and have dwindled without their notice. I asked about the financial reports. The Minister of State said they would now be given to the director. Obviously, the director will hand them on to the Mental Health Commission. Does the Bill provide that if a ward of court is awarded a fund or a certain amount of money, that money can be invested and dwindle?

We had a long debate here the last day on how the funds can dwindle while the person concerned knows nothing about it until he or she is told there is no more. Is there a facility for persons to take a legal case saying they want to know their business and want an annual report put in front of them? An annual report is a small thing to ask for. Is this provision written into the Bill and, if so, where is it? If not, it should be in it.

The Bill should provide that persons who are awarded the money and the persons assisting them are given an annual report by the director and the Mental Health Commission to let them know the wherewithal of their funds. If it is not there, do they have the right, given that it is under the Legal Aid Board, to take a case, because persons should have a right to know this?

In principle, this group of amendments make a lot of sense. The only concern I would raise is that as we have seen with the Legal Aid Board, there is a huge backlog and the resources available for free legal aid are grossly underfunded. There is a huge waiting list and people find it very hard to access. The principle is good but the resources have to be made available if it is to work. There is no point, mair, a chapaill, agus gheobhair féar as one would say in Irish, in having the facility if people cannot access free legal aid because there are not enough solicitors, or there are not people available or the waiting list is far too long. That can be very frustrating.

I will take the last point first because it is important in terms of reassurance. These are very specialist issues. These are not the typical burglary or car robbery incidents. This is a very specialist panel. One could take a serious look at what happens people in an acute unit who get a hearing before a tribunal. There is no waiting time because it is a very specialist panel and it will be the same in this case. As we are human we are inclined to foresee Armageddon and that the courts will be packed with people. God knows there would be days when one or two of us, including me, would cast doubts. This is not something that will happen in the same way that the courts hear ongoing cases of crimes that are committed. This is a very specialist area. There is no waiting list in terms of tribunals. I do not foresee a waiting list for capacity hearings.

It has more to do with the free legal aid service.

No, it is a specialist panel within the legal aid service. Following a request one is entitled to a tribunal hearing within 21 days. All the experts are present. That happens. It is not as if somebody says he or she cannot be there in 21 days and that one will have it in 30 days. It is a specialist area and people are available for it.

The Senator raised the issue of costs. Thankfully, I am not responsible for costs. Whenever I come across anything for which I am not responsible I always say, "Thanks be to God." The fees are set by the Legal Aid Board in consultation with the Department of Justice and Equality and will be no more or no less than for any legal service. Account would always be taken of the fact that one does not want to pauperise people by having expert representation. That is why the Legal Aid Board is in place. The fees will be exactly the same for everyone.

In terms of funds, as soon as the wardship is extinguished, whatever funds are available to people or those who are in the process of having an award made to them, it will no longer be the responsibility of the courts to invest. I hope people would have enough people to surround them to give them the type of advice that is necessary in order to have secure investments rather than taking risky investments. Nobody will hold those funds other than the persons or their co-decision makers, assistants, families or whatever. I assume they will invest them, or not, as the case may be, in the way they wish. As with all investments, those investments are equally open to fluctuation.

I think Senator Martin Conway said on the last occasion that people put their money into blue-chip investments which turned out to be as vulnerable as anything else.

That is fine. I think it is better now. It is the performance when they are non-performing.

Who would the Senator sue?

It is the reporting, that they are informed.

Who would inform them?

The director or whoever, the co-decision maker.

No, the director will not-----

That is what I am trying to find out. They have not been performed to date.

No, that is with the wardship. We are extinguishing wardship. The only people who will inform-----

Would it all be open there?

In the same way any of us would be informed, by way of statement. We have all felt that awful drop in the pit of our stomach when it came out that a pension plan had gone south and so on. It will be exactly the same. One would hope they will get expert advice in terms of investment or protection, but it will be on an equal basis. It will not be that they just get a letter to say there are no more funds. It will not be in the remit of the State to do it any more, which is sensible and reasonable.

On that point about the funds, the Minister of State said that they would get expert advice. Is there something in the provisions that would specify this? We discussed this issue the last day. It would be imperative that people who have not been used to handling money on behalf of a family member who lacks capacity would be given advice. It could be enshrined and guaranteed.

That is not in this Bill and is not intended to be for exactly the reasons about which Senator Cáit Keane talked. What would happen in the event that someone gave that advice, even the special visitor, and it did not pan out? That is what we discussed last time. We hope that whoever is making those decisions with the relevant person would go to these people, whoever they are, financial managers or whoever else.

It is up to the family members to go to their own financial advisers.

Amendment agreed to.
Government amendment No. 30:
In page 55 to delete lines 28 to 36 and substitute the following:
“(b) in section 28 by inserting after subsection (3) the following:
“(3A) Where the proceedings the subject matter of the application under this section concern an application under Part 5 of the Assisted Decision-Making (Capacity) Act 2015 relating to the matter referred to in section 34(1) of that Act—
(a) paragraphs (c) and (e) of subsection (2) shall not apply, and
(b) where the applicant is a relevant person, paragraph (a) shall not apply.”,
(c) in section 28(5)—
(i) in paragraph (d) by deleting “aid.” and substituting “aid, and”, and
(ii) by inserting after paragraph (d) the following:
“(e) who is a patient, within the meaning of the Mental Health Act 2001, for the purpose of providing that person with legal representation before a tribunal in proceedings under that Act.”,
(d) in section 33, by inserting after subsection (7) the following:
“(7A) Where a legal aid certificate has been granted to an applicant who is a relevant person who does not satisfy the criteria in respect of financial eligibility specified in section 29, the Board may seek to recover some or all of the costs of providing the legal aid to the relevant person concerned.”,
and
(e) in section 37(2), by inserting after paragraph (fb) the following:
“(fc) make provision for the mechanism for recovery of the costs referred to in section 33(7A);”.”.
Amendment agreed to.

Amendments Nos. 31 to 34, inclusive, are related and may be discussed together. Is that agreed? Agreed. Amendment No. 33 is a logical alternative to amendment No. 32.

Government amendment No. 31:
In page 56, line 13, to delete “or”.

Referring back to the previous discussion, it will be up to the director to advise people on what services are available. Those services will not necessarily be delivered by the service itself, however.

Amendments Nos. 31 to 33, inclusive, arise from the amendment proposed by Senators David Cullinane, Trevor Ó Clochartaigh and Kathryn Reilly on Committee Stage. Their amendment, as is set out in amendment No. 33, provides that a relative or friend of the appointer could make an application on behalf of an appointer for a review of the ward’s case. I promised to look into their proposal and to revert with an amendment if legally feasible. This is a very technical and legal Bill.

I am now proposing amendment No. 32, which follows that put forward by the Senators. It provides 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 there is a relationship of trust between them. There is one technical difference between the two amendments. I know the Senators will understand this point. My amendment describes the person who will be the subject of the application as a ward rather than as an appointer. This is because the applications in this Part relate to wards. The term "appointer" is used in the Bill only in relation to those appointing decision-making assistants or co-decision makers. It is more correct to use the term "ward" for the purposes of Part 6 as the person whose case will be reviewed by the wardship court will always be a ward. As I have now accommodated the Senators’ amendment, I would appreciate if they did not press their amendment.

Amendment No. 31 is consequential on the acceptance of amendment No. 32. Amendment No. 34 is a technical amendment to include a reference to the wardship court’s jurisdiction under section 22(2) of the Courts (Supplemental Provisions) Act 1961. The effect of the amendment is to provide for the wardship court to continue to have jurisdiction to enable payments to be made on behalf of wards on an interim basis, pending the review of their cases. No change is envisaged to the policy of abolishing wardship for adult wards within the time limits already specified.

I thank the Minister of State for her explanation. We were moving the amendment because the UN Committee on the Rights of Persons with Disabilities has stated in general comment No. 1 that "[u]nder article 12 of the Convention, perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity". Since the Bill is being developed as part of Ireland's preparation to ratify that convention, the functional assessment of mental capacity must be replaced by a process of interpreting the will and preferences of the individual. We believe this would ensure that when people need help to make decisions they are supported to do so, rather than having their legal right to make decisions removed.

I must say that it is refreshing. Many Ministers come in and say they will listen to us and take things on board, but do not. We are grateful that the Minister of State has done so. It is an early Christmas present in one sense. It quite unusual for us on this side of the House, in these seats anyway, to have anything we put forward taken on board.

When they are good, the suggestions are taken on board.

They are always good. The Senator just does not see the merit in them often enough.

They should be taking on an awful lot more.

I thank the Senator. It is a very important amendment and we appreciate that the Minister of State has taken it on board. We will not be pressing amendment No. 33.

I also welcome the amendment because it brings scope for potential applicants to review the situation of those who are in the wardship of the court at the time the Act is commenced. It is great to see the Minister of State taking it on board and I commend my colleagues on proposing the amendment on Committee Stage.

I feel it must be Christmas or something. There is a terrible outbreak of goodwill. I thank the Senators.

Amendment agreed to.
Government amendment No. 32:
In page 56, between lines 13 and 14, to insert the following:
“(b) a relative or friend of the ward who has had such personal contact with the ward over such period of time that a relationship of trust exists between them, or”.
Amendment agreed to.
Amendment No. 33 not moved.
Government amendment No. 34:
In page 57, in the section 47 inserted by amendment 169 at Committee Stage in the Seanad, to delete subsection (2) and substitute the following:
“(2) Pending a declaration under section 46(1), the jurisdiction of the wardship court as set out in sections 9 and 22(2) of the Courts (Supplemental Provisions) Act 1961 shall continue to apply.”.
Amendment agreed to.
Government amendment No. 35:
In page 58, in subsection (1) of the section 50 inserted by amendment 170 at Committee Stage in the Seanad, to delete the definition of “attorney”.
Amendment agreed to.
Government amendment No. 36:
In page 58, in subsection (1) of the section 50 inserted by amendment 170 at Committee Stage in the Seanad, to delete the definition of “enduring power of attorney”.
Amendment agreed to.
Government amendment No. 37:
In page 58, in subsection (1) of the section 51 inserted by amendment 171 at Committee Stage in the Seanad, to delete “one or more suitable persons” and substitute “another person who has also attained that age”.
Amendment agreed to.
Government amendment No. 38:
In page 58, in subsection (6) of the section 51 inserted by amendment 171 at Committee Stage in the Seanad, to delete “of performing” and substitute “to perform”.
Amendment agreed to.
Government amendment No. 39:
In page 58, in subsection (1)(e)(ii) of the section 52 inserted by amendment 172 at Committee Stage in the Seanad, to delete “the functions of an attorney” and substitute “his or her functions as specified in the instrument creating the enduring power of attorney”.
Amendment agreed to.
Government amendment No. 40:
In page 58, in subsection (4)(a)(iii) of the section 52 inserted by amendment 172 at Committee Stage in the Seanad, to delete “of” where it secondly occurs.
Amendment agreed to.

Amendments Nos. 41, 42, 48, 50, 55, 58 to 65, inclusive, and 68 to 70, inclusive, are related and may be discussed together. Is that agreed? Agreed.

Government amendment No. 41:
In page 58, in subsection (4)(b) of the section 52 inserted by amendment 172 at Committee Stage in the Seanad, to delete “enduring power of attorney” and substitute “instrument creating the enduring power of attorney”.

I propose to address amendments Nos. 41, 42, 48, 50, 55, 58 to 65, inclusive and 68 to 70, inclusive, together. These proposed amendments relate to the new enduring powers of attorney provisions that were inserted on Committee Stage. They are mainly technical in nature, seeking to rectify typographical errors or to clarify the intent of the provision. A number of them replace the term “enduring power of attorney” with the more correct term “an instrument creating an enduring power of attorney”. The review of these provisions in preparation for Report Stage revealed the amendments needing to be made to the provisions already agreed.

Amendment No. 41 is a technical amendment. It clarifies that the signatures of the witnesses to the creation of the enduring power are to be in the instrument that creates the enduring power and not within the enduring power.

Amendment No. 42 is a technical amendment that clarifies that the donor executes an instrument that creates an enduring power, not an enduring power.

Amendments Nos. 48, 55, 60 and 64 are technical amendments that clarify the intent of the provision. Amendment No. 50 is a technical amendment that clarifies the intent of the provision. The attorney must send a copy of the instrument that creates the enduring power, not just the enduring power, itself to all those listed in subsection (3) of the new section 60 when he or she applies to register the instrument.

Those being notified of the application to register an enduring power must have access to all the supporting documents, such as the statements from the medical professionals regarding the capacity of the donor, etc., that are necessary in order to create and register an enduring power. This is to ensure they have all the relevant material in case they have any reservations or doubts about the validity of the power and wish to object to the registration and the coming into effect of the power.

Amendment No. 58 is a technical amendment that clarifies the intent of the subsection. The director will establish and maintain a register of instruments creating an enduring power. The instrument will include the enduring power and all the relevant back-up material such as the statements by the donor, the attorney and the various professionals regarding the capacity of the donor.

Amendment No. 59 is a technical amendment to provide that the director may send a copy of the instrument creating the enduring power, not just the enduring power, to those who have a legitimate interest in obtaining a copy of the instrument. Amendment No. 61 is a technical amendment to provide for the deletion of subsection (2) of the new section 66 which was inserted on Committee Stage by amendment No. 186. The revised text takes into account that it is an instrument that creates an enduring power which is registered and not just the enduring power itself.

Amendment No. 62 inserts text into subsection (6) of the new section 67 which was inserted on Committee Stage by amendment No. 187. New section 67 deals with the reporting obligations of attorneys. The amendment provides that if an attorney fails to submit to the director a schedule of the donor’s assets and liabilities and a projected statement of the donor’s income and expenditure within three months of registration of the instrument creating the enduring power, or if he or she fails to keep proper accounts, the director must notify the attorney of his or her failure to comply and to give him or her time to comply or to submit a report.

Amendment No. 63 proposes the deletion of subsections (10) to (13), inclusive, in section 67 that were inserted by way of amendment No. 187 on Committee Stage. The new section 67 expanded the reporting obligations of attorneys of enduring powers, especially in relation to financial affairs, and it applied those obligations to attorneys of enduring powers that have been created under the 1996 Act but have not yet been registered. When I submitted amendment No. 187 on Committee Stage, I thought it was possible to include attorneys appointed in an enduring power created under the 1996 Act but not yet registered. However, I have received legal advice which sets out that imposing the new reporting obligations on attorneys who were appointed under a different law could carry constitutional risks.

In many cases the new reporting obligations will become apparent to the attorney only when the donor has lost capacity and when the attorney applies to register the power. There is a risk that an attorney might decline to take on the additional reporting obligations and might disclaim the enduring power, leaving a vulnerable person without the support of the attorney whom he or she had specifically chosen to take decisions on his or her behalf. Equally, it is not possible retrospectively to require a spouse, appointed as an attorney under the 1996 Act, to comply with reporting requirements that might involve reporting on his or her own assets and property. It should have been obvious, but it was not. While we may not be able to impose the new reporting obligations on the attorneys appointed under the 1996 Act, the new complaints mechanism in relation to attorneys will apply to all attorneys. The complaints mechanism will apply to those appointed under the provisions of the Bill and those appointed under the 1996 Act. This will be an important protection for all donors.

Amendment No. 65 is a technical amendment which clarifies that it is the instrument which is registered, not the enduring power. Amendment No. 68 is a technical amendment to insert additional matters that must be prescribed by the Minister. These were inadvertently omitted on Committee Stage. Amendment No. 69 is a technical amendment to correct an incorrect cross reference and is a consequence of amendment No. 63. Amendment No. 70 is a technical amendment to add a cross reference.

Government amendment No. 46:

In page 58, in subsection (6) of the section 54 inserted by amendment 174 at Committee Stage in the Seanad, to delete “it” and substitute “the power”.

Government amendment No. 51:

In page 58, in subsection (3)(b) of the section 60 inserted by amendment 180 at Committee Stage in the Seanad, after “civil partner” to insert “(if any)”.

Government amendment No. 56:

In page 58, in subsection (3) of the section 63 inserted by amendment 183 at Committee Stage in the Seanad, to delete “in the time period which has been” and substitute “within the period”.

Government amendment No. 61:

In page 58, in the section 66 inserted by amendment 186 at Committee Stage in the Seanad, to delete subsection (2) and substitute the following:

“(2) Where an instrument creating an enduring power of attorney has been registered, the enduring power created by the instrument may only be disclaimed by an attorney with the consent of the court.”.

Government amendment No. 66:

In page 58, in subsection (1) of the section 69 inserted by amendment 189 at Committee Stage in the Seanad, to delete subparagraph (ii) and substitute the following:

“(ii) fraud, coercion or undue pressure was not used to induce the donor to appoint an attorney,”.

Amendment agreed to.
Government amendment No. 42:
In page 58, in subsection (1) of the section 53 inserted by amendment 173 at Committee Stage in the Seanad, to delete “enduring power of attorney” and substitute “instrument creating the enduring power of attorney”.
Amendment agreed to.
Government amendment No. 43:
In page 58, in subsection (2) of the section 54 inserted by amendment 174 at Committee Stage in the Seanad, to delete “for a donor”.
Amendment agreed to.
Government amendment No. 44:
In page 58, in subsection (2) of the section 54 inserted by amendment 174 at Committee Stage in the Seanad, to delete “the” where it secondly occurs and substitute “a”.
Amendment agreed to.
Government amendment No. 45:
In page 58, in subsection (3) of the section 54 inserted by amendment 174 at Committee Stage in the Seanad, to delete “the donor pursuant to this section” and substitute “a donor”.
Amendment agreed to.
Amendment agreed to.
Government amendment No. 47:
In page 58, in subsection (1)(g) of the section 57 inserted by amendment 177 at Committee Stage in the Seanad, to delete “sections” and substitute “section”.
Amendment agreed to.
Government amendment No. 48:
In page 58, in the section 59 inserted by amendment 179 at Committee Stage in the Seanad, to delete “on its registration” and substitute “on the registration of the instrument creating an enduring power of attorney”.
Amendment agreed to.
Government amendment No. 49:
In page 58, on the second line of subsection (3) of the section 60 inserted by amendment 180 at Committee Stage in the Seanad, to delete “(if any)”.
Amendment agreed to.
Government amendment No. 50:
In page 58, in subsection (3) of the section 60 inserted by amendment 180 at Committee Stage in the Seanad, to delete “a copy of the enduring power” and substitute “a copy of the instrument creating an enduring power of attorney”.
Amendment agreed to.
Amendment agreed to.
Government amendment No. 52:
In page 58, in subsection (6) of the section 60 inserted by amendment 180 at Committee Stage in the Seanad, to delete “the” where it secondly occurs and substitute “an”.
Amendment agreed to.
Government amendment No. 53:
In page 58, in subsection (1) of the section 61 inserted by amendment 181 at Committee Stage in the Seanad, to delete “whether—” and substitute “whether the following criteria are met:”.
Amendment agreed to.
Government amendment No. 54:
In page 58, in subsection (1)(a) of the section 61 inserted by amendment 181 at Committee Stage in the Seanad, to delete “is” and substitute “are”.
Amendment agreed to.
Government amendment No. 55:
In page 58, in subsection (1) of the section 62 inserted by amendment 182 at Committee Stage in the Seanad, after “registration of an instrument” to insert “creating an enduring power of attorney”.
Amendment agreed to.
Amendment agreed to.
Government amendment No. 57:
In page 58, in subparagraph (3)(i) of the section 63 inserted by amendment 183 at Committee Stage in the Seanad, to delete “this section” and substitute “section 61(1)”.
Amendment agreed to.
Government amendment No. 58:
In page 58, in subsection (1) of the section 64 inserted by amendment 184 at Committee Stage in the Seanad, to delete “enduring powers of attorney” and substitute “instruments creating an enduring power of attorney”.
Amendment agreed to.
Government amendment No. 59:
In page 58, in subsection (5) of the section 65 inserted by amendment 185 at Committee Stage in the Seanad, to delete “an enduring power of attorney” and substitute “an instrument creating an enduring power of attorney”.
Amendment agreed to.
Government amendment No. 60:
In page 58, in subsection (1) of the section 66 inserted by amendment 186 at Committee Stage in the Seanad, to delete “which” and substitute “where the instrument creating it”.
Amendment agreed to.
Amendment agreed to.
Government amendment No. 62:
In page 58, in subsection (6) of the section 67 inserted by amendment 187 at Committee Stage in the Seanad, after “incomplete report” to insert “or fails to comply with subsection (1) or (2)”.
Amendment agreed to.
Government amendment No. 63:
In page 58, in the section 67 inserted by amendment 187 at Committee Stage in the Seanad, to delete subsections (10) to (13) inclusive.
Amendment agreed to.
Government amendment No. 64:
In page 58, in subsection (1)(a) of the section 69 inserted by amendment 189 at Committee Stage in the Seanad, to delete “the power” and substitute “the enduring power of attorney or the instrument creating it”.
Amendment agreed to.
Government amendment No. 65:
In page 58, in subsection (1)(b) of the section 69 inserted by amendment 189 at Committee Stage in the Seanad, to delete “an enduring power” and substitute “the instrument”.
Amendment agreed to.
Amendment agreed to.
Government amendment No. 67:
In page 58, in subsection (3)(b)(ii) of the section 69 inserted by amendment 189 at Committee Stage in the Seanad, to delete “donor,” and substitute “donor, and”.
Amendment agreed to.
Government amendment No. 68:
In page 58, in the section 71 inserted by amendment 191 at Committee Stage in the Seanad, to delete paragraph (b) and substitute the following:
“(b) the form of notice under section 53 of execution of an instrument creating an enduring power of attorney;
(c) the class of healthcare professionals under sections 52(1)(d), 60(7)(b) and 65(4)(d);
(d) the form of application under section 60(2) to register an instrument;
(e) the form of notice under section 60(3) of an application to register an instrument;
(f) the form of a report under section 67 to be submitted by an attorney to the Director;”.
Amendment agreed to.
Government amendment No. 69:
In page 58, in subsection (1) of the section 73 inserted by amendment 193 at Committee Stage in the Seanad, to delete “67,”.
Amendment agreed to.
Government amendment No. 70:
In page 58, in subsection (1) of the section 73 inserted by amendment 193 at Committee Stage in the Seanad, to delete “68(6) and 68(7)” and substitute “68(6), 68(7) and 68(8)”.
Amendment agreed to.

I move amendment No. 71:

In page 78, to delete lines 13 to 22.

I outlined my rationale during the discussion on Committee Stage and I will not repeat it. I tabled the amendment again because I was not satisfied. I have had a series of engagements with the Minister of State and her officials in the Department of Health. While the Bill is bringing a significant group advance in the advance health care directives, those who are involuntarily detained and treated under the Mental Health Act 2001, approximately 10%, will not be included. Each individual is significant. As I outlined on Committee Stage, all the research tells us that it is not about people refusing treatment but about their preferences being backed up. It is at this precise moment that it is needed.

I am also very aware of the difficulties regarding the Mental Health Act, which is under review, and how we need to recalibrate and re-engineer it. I am very torn. While I am a pragmatic person, I am very concerned that we are leaving people behind in an approach that must be welcomed. While we can discuss the legislation up and down in the Houses, the practice and resourcing on the ground may not change. Will the professionals take a human rights approach centred on dignity, wills, preferences and listening in the different ways many of my colleagues have outlined? While we can have all the best and most precise legislation, will it make the difference we all want to believe in? Many of my colleagues in the Seanad have personally invested in trying to make this what it should be, as has the Minister of State.

Will the funding and resources be given to approaches that respect human rights, dignity and the will and preferences of the individual? I particularly cite open dialogue for those in acute distress, psychosis and mania, which is being used by Dr. Pat Bracken of the HSE in west Cork. In the United Kingdom the NHS provides a three-year training programme in the open dialogue approach with the Hearing Voices Network. We have not necessarily seen the engagement on the ground.

We have seen some brilliant practice and some not so brilliant, to put it in the politest terms, since I am not allowed to use unparliamentary language and there are certain words I would like to use regarding that practice. I had a very deep discussion with the Minister on this and I will not press the amendment. I cannot say it is a head and heart decision because my head as well as my heart is torn on this matter, but I am also pragmatic. While this Bill will make a difference, I believe we are leaving some people outside the room, so to speak, and I am not happy about that, nor do I agree with it. I want a clear commitment from the Minister of State that in revising the Mental Health Act, those people who involuntarily undergo treatment will not be excluded and that if any amendments are needed to the legislation under discussion, this would be done in a timely way. Perhaps the Minister of State would outline how that could be done.

Will the Minister of State clarify whether a person who fails the functional test will not be able to make a valid assessment agreement? I want to be sure I understand this.

I support Senator Jillian van Turnhout's comments. This mirrors a debate held on Committee Stage about advance health care directives being legally binding. I will not repeat all the comments but a strong argument was put forward and some of the organisations represented in the Visitors Gallery tonight are still calling for that. Senators have been contacted again by those groups in light of that debate on Committee Stage. I have been sent a copy of a petition from the Critical Voices Network of Ireland, a service user advocacy network, with 345 signatures and comments from health service users and other interested parties on the advance health care directive amendment. That is still on the table and the service users have not been assuaged by the comments made. They say the Minister of State is putting through the Bill to remove section 59 and 60 provisions where a person is unwilling to consent to ECT and medication under the Mental Health Act; therefore, they see no clear reason this cannot be done for people who, under the Mental Health Act, are found incapable of consenting. The call is still there and I am making one last gasp attempt to get the Minister of State to take it on board. She has accommodated many other changes, which is appreciated. This one is ongoing.

I also support the call by Senator Jillian van Turnhout for open dialogue and other methods being advocated. Will the Minister of State give a commitment on that and say whether she will take it on board, even if it cannot be included in the Bill? Will she also say whether the Government will take the needs and wants of the service users into consideration?

I formally second Senator Jillian van Turnhout's amendment. I concur with the impassioned points she has made.

I said, on Committee Stage, that I have no objection in principle. It is important to say this. The capacity legislation covers everyone, including people who have mental health difficulties and advance health care directives. The legislation goes further because most countries do not include people with mental health difficulties in capacity legislation. There are two small exceptions which are very understandable. One is when a person is subject to a conditional discharge from the Central Mental Hospital. I was involved in the legislation when it went through under the previous Government. It allows people limited conditional discharge from the Central Mental Hospital, which is right and proper. I have always had an interest in mental health, and the fine detail and more severe end is sometimes lost in the debate. However, if the person on conditional discharge decided through an advance health care directive that he or she did not want to continue with their medication regime while outside of the institution, clearly that conditional discharge would be revoked and they would be brought back in. It is all dependent on the person complying with their medication regime. They could be hearing voices and I know that people who hear voices and I have a good relationship with some such people. I sometimes think those voices are probably more informed than the rest of us. However, I understand, as do they, that there are times when these people must have their needs protected more than anything else.

The other exception is for people who are detained involuntarily. Everyone is covered under this legislation regarding advance health care directives, whether it involves mental health, acquired brain injury, disability and so on. There are just those two small exceptions. The exception of the person who is detained involuntarily will be dealt with in the Mental Health Act. I have had a discussion on this with people in this area whom I trust and who would not be conservative in their thinking. We cannot knowingly put a section into this legislation that contradicts section 4 of the Mental Health Act. However, this will be dealt with in the new Mental Health Bill. When I consulted Professor Brendan Kelly, whom I trust very much on this matter, he agreed that advance health care directives under the Mental Health Act must be legally binding, but in the event of imminent, serious harm or the possibility of such, the consultant would have to overrule that advance health care directive. However, he or she would have to explain the decision before a tribunal or before the courts. Professor Kelly explained that this is done all the time.

It is not an impossible task but we cannot do it in this legislation. If this Bill requires amending as a result of the new Mental Health Bill, which will involve 165 amendments, that will not be a problem and it will happen. This is not a principled exclusion. It is merely a practical method of doing it. I do not very often slap myself on the back, but if anyone thinks for one minute that I want to exclude people just because they have a mental health difficulty, they really do not know me. This is something we are going to do but we cannot do it in this legislation. In the event that we need to amend this legislation as a result of the new Mental Health Bill, that will happen. I hope that gives some degree of comfort to people. I understand that people want it to be included but it is possible to amend the Bill in the event that the Mental Health Bill contradicts it. There is a question about whether there should be mental health legislation at all, but that is a different story.

I thank the Minister of State for clarifying that. Every one of us in this House has had a discussion about this with her and with others outside the House. I get what she is saying and she has clarified it well. I appreciate that if the legislation needs to be amended in the Mental Health Bill, that will happen, which is good. We cannot allow this Bill to fall because of this matter. I appreciate the Minister of State's comments.

As the Minister of State will keenly appreciate, the difficulty is that if a person is involuntarily detained, he or she will already feel as though his or her rights are diminished. That is where the difficulty lies for me because we are excluding this group further and we are diminishing their rights further.

I believe amendments will have to be made and that the situation will have to be changed. This should be a priority area because we are talking about a particularly vulnerable group of people given the situation they are in.

Amendment, by leave, withdrawn.
Government amendment No. 72:
In page 83, in the text inserted by amendment 230 at Committee Stage in the Seanad, to insert “so” before “commits”.
Amendment agreed to.
Government amendment No. 73:
In page 85, line 12, to delete “Courts Service” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 74:
In page 87, line 26, to delete “Courts Service” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 75:
In page 87, line 29, to delete “Courts Service” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 76:
In page 89, in the subsection (3) inserted by amendment 237 at Committee Stage in the Seanad, to delete “shall,” and substitute “shall”.
Amendment agreed to.
Government amendment No. 77:
In page 90, line 5, to delete “Courts Service” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 78:
In page 90, line 5, to delete “Minister” and substitute “Minister for Health”.
Amendment agreed to.
Government amendment No. 79:
In page 90, to delete lines 8 and 9 and substitute the following:
“(3) A person appointed to be Director shall be a member of the staff of the Mental Health Commission.”.
Amendment agreed to.
Government amendment No. 80:
In page 90, lines 13 to 15, to delete all words from and including “(1) A” in line 13 down to and including line 15 and substitute the following:
“(1) A person who is a member of the staff of the Director shall be a member of the staff of the Mental Health Commission and the provisions of Part 3 of the Act of 2001 shall apply to such staff.”.
Amendment agreed to.
Government amendment No. 81:
In page 90, line 17, to delete “Courts Service” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 82:
In page 90, line 24, to delete “Courts Service” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 83:
In page 90, line 25, to delete “Minister” and substitute “Minister for Health”.
Amendment agreed to.
Government amendment No. 84:
In page 90, line 29, to delete “Courts Service” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 85:
In page 90, line 29, to delete “Minister” and substitute “Minister for Health”.
Amendment agreed to.
Government amendment No. 86:
In page 90, to delete lines 31 to 34.
Amendment agreed to.
Government amendment No. 87:
In page 90, line 35, to delete “Courts Service” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 88:
In page 90, line 39, to delete “Minister” where it firstly occurs and substitute “Minister for Health”.
Amendment agreed to.
Government amendment No. 89:
In page 90, line 40, to delete “Courts Service” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 90:
In page 91, line 18, to delete “Minister” where it firstly occurs and substitute “Minister for Health”.
Amendment agreed to.
Government amendment No. 91:
In page 93, line 14, to delete “Board” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 92:
In page 93, line 19, to delete “Board” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 93:
In page 93, line 20, to delete “Minister” and substitute “Minister for Health”.
Amendment agreed to.
Government amendment No. 94:
In page 93, line 20, to delete “Board” and substitute “Commission”.
Amendment agreed to.
Government amendment No. 95:
In page 93, line 23, to delete “Board” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 96:
In page 93, line 29, to delete “Board” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 97:
In page 93, line 30, to delete “Minister” and substitute “Minister for Health”.
Amendment agreed to.
Government amendment No. 98:
In page 93, line 31, to delete “Minister” and substitute “Minister for Health”.
Amendment agreed to.
Government amendment No. 99:
In page 93, line 32, to delete “Board” and substitute “Commission”.
Amendment agreed to.
Government amendment No. 100:
In page 93, line 34, to delete “Board” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 101:
In page 93, line 34, to delete “Minister” and substitute “Minister for Health”.
Amendment agreed to.
Government amendment No. 102:
In page 93, line 37, to delete “drawing to the Board’s and the Minister’s attention” and substitute “drawing to the attention of the Mental Health Commission and the Minister for Health”.
Amendment agreed to.
Government amendment No. 103:
In page 94, line 1, to delete “Board” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 104:
In page 94, line 2, to delete “Minister” and substitute “Minister for Health”.
Amendment agreed to.
Government amendment No. 105:
In page 94, line 3, to delete “Minister” and substitute “Minister for Health”.
Amendment agreed to.
Government amendment No. 106:
In page 95, to delete line 6.
Amendment agreed to.
Government amendment No. 107:
In page 95, line 29, to delete “Board” and substitute “Mental Health Commission and Minister for Health”.
Amendment agreed to.
Government amendment No. 108:
In page 95, line 31, to delete “Minister after consultation with the Minister for Health and the Board” and substitute “Minister for Health after consultation with the Minister and the Mental Health Commission”.
Amendment agreed to.
Government amendment No. 109:
In page 96, line 23, to delete “Courts Service” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 110:
In page 97, to delete lines 6 to 9.
Amendment agreed to.
Government amendment No. 111:
In page 97, line 25, to delete “Courts Service” and substitute “Mental Health Commission”.
Amendment agreed to.
Government amendment No. 112:
In page 110, between lines 35 and 36, to insert the following:
“Amendment of Act of 2001
128. The Act of 2001 is amended—
(a) in section 17(1), by deleting paragraph (b) and substituting the following:
“(b) arrange for the assignment of a legal representative to represent the patient concerned unless he or she proposes to engage one,”,
and
(b) in section 33(3) by deleting paragraph (c).”.
Amendment agreed to.
Government amendment No. 113:
In page 111, line 3, after “shall” to insert “, in consultation with the Minister for Health”.
Amendment agreed to.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."

I wish to say a final word because I tabled several amendments. Today is a great day because we have repealed the Lunacy Regulation (Ireland) Act of 1871. Even more important, we strove in this House, as have all of us with the Minister of State taking the lead, to stress the importance of assisted decision-making, how we look at people in very complex and human situations and ensuring we have a legal framework for them. We have highlighted the importance of choice, control and consent.

I took a keen interest in the Bill because of my experience with my father who died recently. As he spent his last few years in a nursing home, I have seen at first hand what happens in the nursing home setting. I have seen the pressures that not having advance health care directives put on individuals, families, health care professionals and everybody involved in the process. What we have done here is historic and must be applauded. It is wonderful but we must see our changes put into practice and ensure that change happens.

This legislation is not just about legal changes but a huge cultural shift. We need to sing out and ensure that this cultural shift happens. I applaud the Minister of State on the work she has done. This legislation is not the end line but a starting line and I say well done to the Minister of State.

This Bill may not be perfect. As somebody who has been involved in the legal profession for years I know that one can never get a utopian or perfect scenario. As I said on the last occasion I spoke here, particularly on the issues raised by Senator Jillian van Turnhout, I concur with her that this legislation is a whole lot better than what we have had and is a big step in the right direction. Inevitably, legislation will be amended and changed. Perhaps the next Government or the one after might say, "Look, this isn't working so we can change it."

What has been achieved here today is historic and is an important step in the right direction. Some of the issues that have been reformed in this Bill date back 150 years so today's legislation is welcome. I thank the Minister of State and her officials for the work they have put into the legislation. I tabled many amendments on Committee Stage and my colleague, the Acting Chairman, Senator Diarmuid Wilson, in my absence last week due to personal reasons, helped to move them forward. We have had tough debates on some of the issues but the Bill is better for our debates.

This Bill is major legislation. To my knowledge, all legislation that has ever been enacted has been amended, changed and strengthened. This Bill is a significant achievement for this House, the Minister of State and her backroom people and advisers. It may not be inch perfect but it is a whole lot better than what existed ten, 20 and 30 years ago, which in itself is a huge step. All of the people seated in the Visitors Gallery have fought for this legislation and raised issues with us all. They deserve a particular bualadh bos for their tremendous efforts.

They pushed the Minister of State, not that she has needed pushing on this issue, and pushed all of us to get this done. It is a wonderful achievement in the area of mental capacity. I am pleased we are in the position we are in tonight.

On behalf of the Fine Gael group of Senators, I, too, would like to pay special tribute to the Minister of State, Deputy Kathleen Lynch, on what is ground-breaking legislation. It took almost the lifetime of the Government. That simply shows us how important the legislation is. My comments on perfection earlier were rebutted by one of my colleagues. Perfection was not achieved by the great Greek and Roman civilisations in practically anything they did. I do not think politics can ever achieve perfection. All we can do is strive to ensure we leave society and the processes within society in a better place than we found them.

We should strive to ensure the country, the nation, our democracy, the people and citizens, including vulnerable citizens, who are all citizens, ultimately, have a better deal than when we came to this House first. Certainly, in terms of this legislation, we have gone a long way to achieving that. Perhaps it is not perfection but we will get there. I hope the people who come after us in this Parliament can improve it to ensure their legacy will be far better.

I acknowledge the non-governmental organisations. Many representatives from these organisations are in the Visitors Gallery and many are looking in on television and the Internet. If it was not for NGOs and the vital role they play in society, I do not think we would be as advanced as we are today.

I had the great privilege of officially opening a centre of excellence in the University of Limerick for equipping and offering continuous professional development to NGOs and people working within NGOs to ensure the level of professionalism today in these organisations improves and increases. This will ensure they are among the most professional NGOs in the world. The commitment is in place and I firmly believe that as we move forward we will have a great little nation for people who are vulnerable. That is all we can achieve.

I wish to pay tribute to Ms Carol Baxter, her colleague and the other officials in the Department. Often their work is not appreciated but it is important for parliamentarians to acknowledge their work. If they did not prepare or deal with the various nuggets that cropped up, as well as the conflicts in the legislation and so forth, the Minister of State would not have been properly advised and, in turn, those of us in Parliament would not have been advised either.

It is a tribute to all Senators across the board that we have not divided on the Bill. It is not perfect but it is a significant step forward. It may not be a giant step for man, as someone said once in space, but it is a significant step for the people who really need it.

I would like to be associated with the remarks of Senator Martin Conway.

Senator Trevor Ó Clochartaigh is next, without interruption, please.

Ba mhaith liom aontú leis an méid atá ráite roimhe seo. Is lá iontach tábhachtach go deo é seo, go háirithe dóibh siúd a úsáideann na seirbhísí seo agus atá ag fanacht na céadta bliain leis an lá seo. This is a wonderful day. It is a proud day for everyone in the House. We have to remember that the most important people are the service users and their families. They are the heroes today, in fairness. Other people have played a part also.

It has been a good example of democracy in action. All of us are aware that we have been lobbied, tweeted about and received messages from people who are very passionate about this topic. It is important that some of them are in the Visitors Gallery. It is great to see people in the Visitors Gallery sitting through a debate and listening to all that is being discussed. They have been nudging us a little further to do what we need to do with the amendments, etc.

The hashtag #creditwherecreditisdue was used last week and I wish to give the Minister of State credit. It is important that we do so. My colleagues in the Seanad will be aware that I am very critical of Ministers with whom I do not agree. However, it is important that we give credit where credit is due today. If we did not have the political will from the Minister of State and her staff to bring in the amendments and take them on board, it would not have happened.

We will come back to other issues - the Minister of State has noted as much. That is for another day. Today is a day to be grateful that this legislation is going to be put through. It will make the lives of the service users, their families and all those in need of these services better in future. Who knows whether we could be in that category ourselves at some stage? It is important that this legislation is passed. Ba mhaith liom tréaslú leis an Aire as an obair atá déanta aici.

I join my colleagues in commendation. It is a proud and an historic day. It is also an emotional day for all the people involved. Like my colleagues, I am keen to commend the Minister of State on all her hard work. I know of the numerous discussions that she and her expert advisers have held. Not only have they sat through five hours of debates in one sitting as well as God knows how many hours elsewhere but they have been very communicative with information and advice on the part of the Department, for which I thank the officials.

It is not perfect and I know some people will be unhappy. However, as we have said, it is a major step forward. It is also a great sign that we are acknowledging that there is work to do on both sides when it comes to examining the mental health Bill. Any day spent working on our legislation when we can remove words like "lunatic" and "imbecile" from our legislation is a proud day.

It is also a great day for the Seanad. It is a day when we should all stand up and thank God the Taoiseach did not have his way and have the House abolished. It is also a great day because an early election was not called. That was a serious concern of mine - I said as much publicly. One thing many of us were focused on was getting this legislation through and I am delighted that this day has come.

Without singling anyone out, I know there are people in the Visitors Gallery who have sat through the debate on the Bill. I wish to thank Inclusion Ireland. I do not wish to name names, but I thank everyone in the Visitors Gallery. There are many others I wish to thank as well. I will conclude by referring to the self-advocacy group in Inclusion Ireland. I saw a video made by one of the advocates, Adrian, last week. I know he has tweeted and told me that he is watching this, as are many people who will be affected by this legislation. We have seen the videos people have put up and we know what this Bill means to them. It is a great day for us.

My last interruption was not an interruption. It was simply to agree with everything Senator Martin Conway had said, rather than repeat it, in deference to the people who have been sitting in the Visitors Gallery for hours. I congratulate the Minister of State for a job well done. It has taken the Minister of State several hours and I thank her for the work she has put into this Bill, not only the hours she has sat in the House but all the time over the years since she was elevated to her position.

I thank the organisations we have met through the process. As Senator Marie-Louise O'Donnell said, they have educated us and I am grateful to them. In particular, I thank Ms Fiona Walsh from Tallaght trilogue group, Mary Farrell and the representatives from Inclusion Ireland. It is a job well done. It has been long-awaited. I thank the Minister of State. It was not an interruption; it was a job well done.

I am sorry to come back in again, but I said earlier it was a good day for the Seanad. Moreover, I commend Senator Trevor Ó Clochartaigh also. It is great to see cross-party support and that we can work as a team in the Seanad.

I should have ruled that out of order.

First, I thank everyone who has been involved in the formulation of this Bill. It has been a long time on the go. It is four years since we came to the Houses with it. Not only that, there have been two years of continuous consultation. I know they get embarrassed, but do Senators know how great these officials are? After five hours last week, they came out and said to me that the debate was very interesting. I know that was not what they were thinking, but they still said it.

They would still say it. They are exceptional people, and sometimes we forget that they were the ones who held consultations and produced what we have passed. It bears no resemblance to the Bill as first published. The Title, contents and argument have changed. As people have said, things will change into the future. Surely the essence of what we are is that we will continue to learn, realise what we do, and do not do, well and what we should, and should not do, more of.

The first time this issue came to my attention was through Inclusion Ireland, represented by Ms Jean Spain and Ms Deirdre Carroll. I cannot but commend Ms Patricia Rickard-Clarke for her exceptional work. She promoted the Bill constantly and explained its purpose, consequences and all the rest.

I met a young woman with mobility problems who used a wheelchair. She explained to me that when her family was given respite care, she went into a nursing home. She asked me why she should have to leave her family home. That is the essential point of the Bill. Individuals have the right to make different decisions themselves, not others. Why could that young woman not say she would prefer to stay at home with support rather than having to leave what she is familiar with? That type of experience tells us we must do better.

I am straying into the area of report cards and all the rest, but we must do better and be more open. We must be like sponges, that is, open to the suggestions made by others. I only object to something when I am absolutely convinced that something is not the right thing to do at a particular time - it may be the right thing to do next year. The question is often posed as to when one should change one's mind, and the answer is when the evidence changes. That should be the position for everyone.

Before work on the Bill commenced, I referred to it as the "Does he take sugar legislation?". The phrase implies that a person with a mobility, disability or intellectual disability could not speak for himself or herself or engage with others. The Lunacy Regulation (Ireland) Act, the Marriage of Lunatics Act and other legislation will be repealed. I am sure such terms were perfectly normal at one time, but times change, things move on and we do different things. Our attitudes to others and society change.

Senator Trevor Ó Clochartaigh and I will never agree on economics.

We might. We are not that far apart.

He knows what I am saying. Unless we are all on the one page about certain areas, the progress that is needed will not be made.

I do not think we are that far apart on most of the issues. When people become involved in politics, they do so in order to do the very best for everyone else. I do not think any party or individual is different in that regard.

This is a very historic day for all of us. When I discuss how we age, I always say that I do not intend to get old, rather, I just intend to keep on living. When the time comes, I want to be asked what I want to do, in terms of whether I want to remain living in the same place or need to move. I want my answer to be respected. The central elements of the Bill are respect, dignity and kindness.

I thank those in the Visitors Gallery, those outside of it and Members of the Seanad and the Dáil for their contributions. We have taken them on board. The Bill was always about being open. The changes we will have to make in the future will be very important. We can be proud of ourselves in terms of the Bill and other legislation, such as the Mental Health (Amendment) Bill which will be debated on Thursday. There are times when one does something that will make a significant difference to each and every person who lives in this country.

Question put and agreed to.

When is it proposed to sit again?

Ar 10.30 maidin amárach.

The Seanad adjourned at 6.45 p.m. until 10.30 a.m. on Wednesday, 16 December 2015.