Léim ar aghaidh chuig an bpríomhábhar

Dáil Éireann díospóireacht -
Wednesday, 11 Dec 2013

Vol. 824 No. 2

Assisted Decision-Making (Capacity) Bill 2013: Second Stage (Resumed)

Question again proposed: "That the Bill be now read a Second Time."

I will be supporting the Assisted Decision-Making (Capacity) Bill 2013. The current legislation dates back to 1871 and one does not need to be a genius to work out that the attitude to allowing people with mental problems to make their own decisions has changed considerably since then. So the Bill is long overdue.

Treating people with such problems is evolving, but not as quickly as I and many people with such problems would like. A change in legislation without a change in culture will not mean much. There is a valid theory to which I subscribe that those with mental health problems should be treated in the same way as those with a broken leg, a broken arm or something like that. I believe that is absolutely wonderful and we should aspire to it. However, sadly in politics that is not the case. When I ran in the last general election one of my opponents, a Fianna Fáil candidate who failed to get elected fortunately, suggested that I should only take half my pay because apparently I was mentally ill. If he had said something similar about a person in a wheelchair, I do not believe he would have got three votes in the election. Sadly, he got more than 5,000 votes even though he was running for a party that had destroyed the country and even though he insulted people with mental health problems.

Previously in this Chamber I have openly admitted that I suffered from depression in the past and even at one stage contemplated suicide. I was quite aghast when yesterday in the Chamber the Minister for Justice and Equality, Deputy Shatter, decided to goad me over the fact that he believes I have mental health problems. I was even more astounded that the Minister of State with responsibility for this area sat beside him and remained 100% silent. The Government can introduce the Assisted Decision-Making (Capacity) Bill 2013 and claim it has done a wonderful job. However, if deep down the people in government do not believe that people with mental health issues are equal, it is not worth a damn. At the end of the day if we have legislation, but no one takes any notice of or has respect for people with mental health issues or who might have had them in the past, what use is it?

I do not expect an apology from the Minister, Deputy Shatter, for insulting me because I had mental health problems in the past, but it would be nice if he would. By doing so he might admit it is wrong to abuse and goad people on the basis of believing they have mental health problems. Fortunately, and luckily for me, I have managed to survive that struggle. However, it does not help when I come into the Chamber and am goaded by a Minister about having a mental health problem in the past. It is sick and twisted. The Government Members should hang their heads in shame if they do not make him apologise.

The Bill is welcome in so far as it makes substantial improvements to the existing legislation dating from 1871. Our outdated wardship system has been heavily criticised by international human rights bodies and by the people unfortunate enough to be forced to avail of the obtuse and grossly unfair provisions, which labelled a person who needed definite legal protections as a lunatic. Up to now such people have been given a very real form of second-class citizenship. I am pleased the Bill restores a measure of equality to these citizens and places them at the heart of the new legal arrangements. The Bill will finally allow the State to ratify the UN Convention on the Rights of Persons with Disabilities.

I wish to highlight some concerns with the Bill, perhaps not with the legislation itself but with how it might be applied. Families need to have better access to information when they find themselves immersed this new system, which often arises as the result of a sudden accident. With no guidance available for these people, assets can be mismanaged or abused by an uncaring and remote system. I have heard of horrible cases of the abuse of people who have been made wards of court. We need to ensure that this legislation properly protects them and lets them have as much say as possible over their own affairs. That is the aim of the legislation and is laudable. On several occasions I have asked on the Order of Business when this legislation would be introduced. Obviously it was delayed for a considerable time owing to technical reasons. It is important to get it passed, but more important will be how we subsequently implement it.

Free legal aid needs to be made available and it needs to be specifically tailored. It is often assumed that wards of court are extremely wealthy, but in many cases the means are quite limited and family members need access to proper legal aid if that is the case.

We have to be certain that there is no conflict of interest among those agents of the State who may be exercising decision-making on behalf of an individual. This may extend to HSE personnel, nursing home agents, etc., so it may not just be family members.

We need guidelines to ensure abuse of persons with limited capacity does not take place. There have been a number of cases, most notably the recent case of an Italian woman the UK. She has bipolar disorder but on becoming pregnant had stopped taking her medication. As a result her behaviour became extremely erratic and dangerous, and in the absence of next of kin or friends she was taken into care. Her baby was delivered by caesarean section and put up for adoption. Clearly in that case, complete control was taken from the person. That did not happen in this country, but it shows the kind of thing that can happen where a person loses that independent control over his or her own affairs.

Regarding costs, very little burden should be placed on the individual in the transition to the new system. Some significant concerns have been raised over wards of court funds. In some cases moneys collected by the courts, including fees, financial assets of the wards, etc., have been risked in private investments.

We have undergone a financial crash. People would have been charged with making investments to ensure that there is a return on the money. In principle, that is not a bad thing but great care must be taken. If the fund is mismanaged or it works to the disadvantage of the person, it may be that the funds may not be there to provide for the person's needs. It will be important that the judges of the Circuit Court have adequate knowledge of the new law.

This is an extremely important Bill and I support it. I take the point made by the last contributor that there urgently needs to be a change of attitude too. In recent years people have talked much more openly about mental health issues, which is very welcome. Sometimes mental capacity is different from mental health. This House should take the lead in attitude. We should not take it lightly when a complaint is made of the nature of the one just made. The Minister owes Deputy Luke ‘Ming’ Flanagan an apology for making the remarks he did.

I call Deputy Seán Kyne. The Deputy is sharing time with Deputies Peter Fitzpatrick and Joe Carey. Deputies Kyne and Fitzpatrick have five minutes and Deputy Carey has ten minutes.

The Assisted Decision-Making (Capacity) Bill is a very significant step on the road to our country ratifying the UN Convention on the Rights of Persons with Disabilities. For far too long this area of law has been neglected to the extent that the current provisions are helplessly and hopelessly outdated and do not reflect the standards that we should exceed in a modern republic.

Very often the debate on issues concerning persons with disabilities centres on resources and available infrastructure for day-to-day support and care. Equally important, however, is the legislative framework for ensuring that the rights of every person with a disability are realised and vindicated. There will always be additional challenges to achieving this crucial objective. The challenges must be met and the State must – not ought to or should – have in place the appropriate laws.

The Assisted Decision-Making (Capacity) Bill is the first time ever that Ireland will have a system of supported decision-making. It will provide the opportunity for individuals to make legally-binding agreements with others to assist and support them in making their own decisions. No longer will it be permissible to make decisions for a person without regard to that person’s thoughts, wishes and opinions, no matter how much the decision-maker is acting out of kindness or out of what they perceive to be the best interests of the person. No longer will we rely on terminology and definitions from an Act passed in 1871. No longer will we be dependent on the cumbersome, complicated and, to be honest, often ineffective ward of court system. No longer will we be operating a system for which there is no right of review, and no longer will we be reliant on a system in which consent to make medical treatment decisions is given solely on an ad hoc basis.

One issue that the Bill addresses is the increasing incidence of dementia. As our population lives longer, dementia is a pressing issue that is affecting more and more of society. I recall watching a television documentary on RTÉ on failings within the health care system - I think it was "Prime Time". The undercover camera captured the ill-treatment of a vulnerable and elderly lady which I am sure was an isolated case. I recall the phrase the elderly woman used - "Let me alone, let me alone," she pleaded. It was an old-fashioned phrase but one which left the viewer in no doubt as to the woman’s distress and of the complete disregard that was being shown for her feelings, wishes and preferences.

This Bill alone will not guard against such abuse but it is a very necessary component which will help establish a society in which vulnerable people are protected. Several organisations, including the Centre for Disability Law and Policy at National University of Ireland, NUI, Galway, Inclusion Ireland and the Disability Federation of Ireland, have highlighted a number of issues regarding the legislation which I think merit attention and consideration and which I hope will be explored further and addressed on Committee Stage.

I agree with the assertions made by the organisations that the positive measures in this Bill, which support people, must be open to all, accessible, inexpensive, easy to use and flexible. It is vital that the procedures and mechanisms being put in place in this Bill emphasise and prioritise the will and preferences of the person involved. While concerns have been raised relating to the use of informal decision-making mechanisms, a balance must be struck in establishing the most effective supports while ensuring such supports are accessible and uncomplicated.

Independent advocacy is important to everyone in society. At times having impartial, friendly and accurate information and support makes a world of difference to a person in a stressful or complicated situation. When a situation concerns a vulnerable person, it is even more important to have an independent advocate. I am encouraged to see that the Bill has been designed with a flexible system that reflects the different levels of support which people in different circumstances will require.

The decision-making option will help people who need a small amount of help in interacting with systems or in obtaining information. The co-decision making option, which requires court approval, will enable a person to appoint a trusted relative or friend to help make decisions on a joint basis. That the co-decision option contains a built-in review process is very positive and will help ensure that the order remains relevant and is the best option for the person with a disability. The decision-making representative option is a step further and is applicable to cases where a person with a disability is unable to be a co-decision maker. A crucial feature of this option is the role played by the public guardian on whose nomination a court appoints the representative. It is a clear, verifiable and independent process with the interests of the person with a disability at the very centre.

Above all else, section 8 of the Bill encapsulates what we are trying to achieve. It makes clear that capacity is always presumed until the contrary can be shown. It ensures that a person will only be considered to be unable to make a decision after all steps to help the person have been taken and that a person will not be considered to be unable to make a decision merely on the basis that the decision is considered unwise and that no interventions shall be made unless it is absolutely necessary to do so. I commend the Minister and his staff on the preparation of this Bill and welcome its progress through the House.

Mental capacity refers to a person's ability to make decisions about their life in areas such as finance or health care as well as common day-to-day decisions. A person may lose mental capacity due to an injury or an illness and this may be a temporary or permanent loss. Legal capacity refers to a person's ability to act within the legal system. Unlike mental capacity, it is a legal construct. The Council of Europe Commissioner for Human Rights 2012 defines legal capacity as something "...assigned to most people of majority age enabling them to have rights and obligations, to make binding decisions and have them respected... It also protects the individual against (some) unwanted interventions." The two concepts are linked in that diminished mental capacity often results in the relevant person's losing their legal capacity, for example, their right to make decisions regarding their finances, living arrangements, etc.

The current legislation governing mental capacity in Ireland dates back to 1871 and is widely considered to be outdated and inappropriate for dealing with people whose ability to make decisions is affected, through illness, injury or another cause. Under the current law, a person who lacks decision-making capacity can be made a ward of court. As a ward of court they will not be allowed to make any decisions regarding their personal welfare or financial affairs, including the right to marry, enter into contracts or decide where to live.

In order for a person to become a ward of court, a petitioner, usually a family member, must make a formal application asking the High Court to hold an inquiry into whether the proposed ward is capable of dealing with their affairs, managing their person or property. In addition, they must swear an affidavit witnessed by a solicitor and include the opinion of two doctors in their application.

In relation to the proposed ward, the following information must be provided: information about his or her medical condition; information about his or her next-of-kin; information about his or her assets; and information about his or her income. The decision on whether to conduct an inquiry rests with the President of the High Court. If an inquiry is ordered, the proposed ward will be examined by a doctor appointed by the High Court.

This Bill proposes to replace the wards of court system with a legal framework to support people in exercising their decision-making capacity so that they can better manage their personal welfare, property and financial affairs, and to change the existing law on capacity from the current all-or-nothing status approach to a functional one, whereby decision-making capacity is assessed on an issue-and time-specific basis.

It also proposes to provide a range of supports on a continuum of intervention levels, for example, decision-making assistance, co-decision making, decision-making representation and informal support, to support people in maximising their decision-making capability; to provide, in circumstances where it is not possible for a person to exercise their capacity even with support, that another person can be appointed by the court to act as their representative with regard to specified matters; to provide that the Circuit Court will have jurisdiction in this area, giving court-backed protection to the options chosen by people; to clarify the law for carers who take on responsibility for persons who need help in making decisions; to establish an office of public guardian within the Courts Service, with supervisory powers to protect vulnerable persons; and to subsume into the Bill the provisions in the Powers of Attorney Act 1996 on enduring powers to bring them into line with the general principles and safeguards in the Bill.

It is also intended that the Bill will, on Committee Stage, incorporate provisions relating to advance care directives, which will be provided by the Department of Health. Advance care directives relate to legal documents which enable a person to specify what type of treatment they want in the event of them becoming incapacitated or nominating a health care agent to make decisions for them. Human rights groups have long called for a revision of the legislation with a shift from substitute to supported decision-making in order that individuals are enabled to make their own decisions wherever possible.

I welcome the Bill. The legislation, to say the very least, is long overdue. The Bill puts forward a modern statutory framework to support decision-making by adults who have difficulty in making decisions without help. It will repeal the Marriage of Lunatics Act 1811 and will cause the Lunacy Regulation (Ireland) Act 1871 to cease to have effect.

The Bill strongly reflects the recommendations of the Law Reform Commission reports and the 70 written submissions to the Joint Committee on Justice, Defence and Equality of last year. The Bill will bring about substantial change. It will change the existing law to a functional one whereby decision-making capacity is assessed on an issue-specific and time-specific basis, replace the wards of court system with a new legal framework, provide for a range of different types of assistant decision-makers, establish an office of public guardian with supervisory powers to protect vulnerable people, and modernise the law in regard to enduring powers of attorney.

With specific regard to the elderly and those with diminishing capacity, there are many who find themselves in great difficulty when trying to deal with their affairs as their mental capacity deteriorates. Throughout my life as a public representative, I can reference many cases where an older person was living a wholly independent life one day and the next day their life changes. This generally happens as a result of a minor issue such as a fall or a burn, or perhaps a more serious condition may arise following a leg or a hip being broken, necessitating a stay in an acute hospital setting followed by care in a nursing home. For whatever reason, perhaps because of their vulnerability at this desperately traumatic time, their mental capacity disimproves rapidly and, in many instances, their legal affairs, particularly those which concern their continuing care, are not in order. This situation in many cases places a terrible strain on the person themselves, their immediate or extended family and perhaps their friends or neighbours. This legislation, as presented, should be of significant benefit in instances such as this. Furthermore, the chronic condition of dementia, without any specific acute trigger, is acknowledged by all to be on the increase, certainly in this country.

The Bill provides a statutory framework for the appointment of different types of people to assist the vulnerable with decision-making, with these to be called assistant decision-makers and co-decision making representatives. They can facilitate decisions, where specified, regarding welfare, property and affairs and most medical treatment of the relevant person. They are appointed by that person or the court. They must also submit annual reports to the public guardian.

I welcome the provision whereby an office of the public guardian, which will replace the Wards of Court Office, will be established within the Courts Service to manage capacity related matters for adults. The office of the public guardian will supervise and handle complaints against decision-making assistants as well as against the co-decision makers, decision-making representatives and attorneys of enduring powers appointed by the court. It will also prepare codes of practice for specific groups and will promote awareness of the legislation among the public. I believe this will be a critical function of this new office.

It is important that awareness is also brought to the relevant public and private sector bodies of issues relating to capacity. Sometimes, as a people, we have a tendency to ignore very real issues, as this issue is. It is a fact that we are living longer but there is a quid pro quo with regard to capacity. In far too many instances, capacity can diminish without warning, which is why this Bill is so important. I welcome the fact the Bill has the dignity of the individual at its core. I commend the Minister, Deputy Shatter, and his officials at the Department for preparing the legislation and bringing it before the House. I support it wholeheartedly.

I wish to share time with Deputy John Browne.

I am grateful to have the opportunity to speak on the Bill. I welcome it as an important step in the State's progress towards ratifying the United Nations Convention on the Rights of Persons with Disabilities. It bears some relation to the earlier legislation offered in this area and drafted by Mr. Dermot Ahern, the then Minister for Justice, Equality and Law Reform. That Bill was based, in part, on the United Kingdom's legislative experience. The Bill before us has clearly benefited from the experience of the UK legislation, and I welcome that.

As the Minister of State is aware, more than 600,000 Irish people, not far off one in five of the population of the State, have some form of a disability. There are 57,000 persons within Ireland who have an intellectual disability. Historically, such persons have not been treated well and the State has failed to provide for the dignity and respect owed to all persons simply by virtue of their humanity. Ireland has a poor record in this respect, as it does in the area of mental health. Thankfully, the past 15 years have seen significant progress in addressing this historic failing, with the Mental Health Acts of 2001 and 2008 standing as a significant milestones in the area.

I welcome this Bill because it is another significant change in updating antiquated legislation such as the Lunacy Regulation (Ireland) Act 1871. It touches on many aspects that go to the heart of what we should regard as the essence of any state calling itself a republic: equality before the law, liberty of the individual as a default position protected by law, and the autonomy of citizens in making decisions concerning their own lives, including decisions that others might judge unwise or imprudent. The law both reflects and helps to shape societal attitudes. In the case of this Bill, I hope it will alter our attitudes towards those people with intellectual disabilities. It signals a significant move away from the paternalistic approach of the current legislative framework towards one that respects the autonomy and will of the individual to make a decision. The move from the current standard of "best interests" towards one that respects the "will and preference" of the individual is welcome in that regard, as is the move from substitute decision-making to that of an assisted or co-operative decision-making process.

In general, the Government needs to signal, through its choices on how it allocates resources as well as on policy and legislation, that the disability sector should not be viewed as a charitable one. The Government needs to change its attitude in that respect.

Instead, all policy needs to be informed by the attitude that all citizens should be given a fair opportunity to live their lives to the fullest potential and play a full part in the life of their communities. Resources should not be allocated on a charitable basis but on one that recognises that persons with disabilities are entitled to these supports and respect as a basic right, the same as any other citizen, and as an imperative of social justice.

Deputy Niall Collins stated last week that we will be seeking to address several concerns with this Bill on Committee Stage. As I mentioned, this Bill uses different language from other legislation in this area, including the Mental Health Act 2008. How it will interface with such legislation? How will we approach previous legislation in order to make it compatible with this legislation and will amendments be required before this Bill comes into operation? Dr. Eilionóir Flynn from NUIG has raised concerns in respect of section 3. This defines mental capacity in a way that suggests that if a person is found to lack mental capacity, it will result in the loss of their legal capacity to make decisions. Article 12 of the UN convention makes plain that persons with disabilities must enjoy legal capacity on an equal basis with others in all aspects of life. Dr. Flynn believes that this provision may be problematic from a human rights perspective. There are some provisions of the Bill that, while not intending to do so, may result in the continuance of the current substitute decision-making regime. Stronger protections will be needed to ensure that court appointed co-decision makers or decision-making representatives take sufficient and proper account of the will and preference of the individual rather than what is considered the "best interest" of the individual from another person's point of view.

The Bill provides for a broad range of powers for informal decision makers but does not provide for similar safeguards as for other the decision makers contained in the Bill. This power need to be restricted, with a duty to explore assisted or co-operative decision making. This Bill continues to leave unresolved an issue that currently exists under the Mental Health Act. There are still no adequate safeguards for persons who are detained against their will. There has been case law on this and the European Court of Human Rights now demands that changes be made in our own legislation. Not the least of such changes must be a person's ability to challenge their deprivation of liberty.

Section 106 of the Bill restricts the application of this Bill in a wide range of areas, including marriage and voting. Again, this is in conflict with the UN convention which states that persons must enjoy legal capacity in all areas of life. I have already referred to a change in attitude that this Bill signals. In that regard, I ask the Minister to reconsider the name of the Office of Public Guardian, which suggests that we are returning to the older paternalistic view that we are working to move away from in this legislation.

Outside of any concerns with the content of the legislation but as essential to its operation as any provision within it is the question of funding about which we need clarity. Several aspects of this Bill ranging from the issue of legal aid needed by those wishing to access its provisions to the Office of Public Guardian will require solid and significant commitments with regard to funding from the Government. There will be little point in advancing such legislation only to find that its provisions remain out of reach or insufficiently enforced to deliver on the promise it contains.

Sadly, this Government has shown little commitment to protect funding to the disability sector and the recent budget only demonstrated this. These measures included a savage 20% cut to the respite care grant, increases in prescription charges and the reassessment of entitlement to medical cards that has affected many persons with a disability. These have been the cause of significant anxiety and the refusal to reverse some of these decisions has challenged the ideals of living in a republic. The true testament of the Government's commitment to the disability sector would be a decision to reverse these cuts.

We will have one speaker please.

The commitment I made prior to the last general election is very clear.

Could the Deputy speak to the Bill?

The Deputy may be aware of the cause of it.

I am very aware of your lies. I am very aware of your untruths.

He may be aware of agreements made by the previous Government.

I am very aware of your broken promises.

Can Deputy Keaveney address his remarks through the Chair?

The true test of the Government's commitment to the provisions of this Bill will be for the Minister to reverse the odious cuts for people who have disabilities. It is probably easy for the Minister to adopt that cynical and critical role. The proceedings of the Dáil are broadcast live to the nation. People sit at home today and wonder why the Minister-----

We are talking about the Bill, not the television page of the Irish Examiner.

We are talking about the Bill. Of course, people are cynical when they see that a Minister in this section would critically object to the reversal of decisions that affect the most vulnerable people in society. To that end, I hope the Minister-----


Could the Minister of State try to remember her own faults - the untruths and the lies that she told the Irish people?

The Deputy might have a few faults.

The Minister of State has a very selective memory.

Deputy Keaveney's time has elapsed. It is a pity his maiden speech as a Fianna Fáil Member has been interrupted.

I thank the Acting Chairman for his co-operation in that respect.

Fianna Fáil supports the Bill. It is important that the State moves towards a supportive legal framework for individuals with intellectual disabilities. The Bill should be strengthened by ensuring that provisions are open to all in line with the UN Convention on the Rights of Persons with Disabilities. The Government needs to re-emphasise its commitment to the disability sector by bringing an end to the perverse situation where many are being re-assessed for medical cards and other cutbacks in the area. It is important to have a legal framework in place. This would be a positive step but requires a coherent and comprehensive plan if laws are to translate into positive impacts.

It is also important to accept that the Bill has some flaws and that the Government accepts amendments from this side of the House regardless of which political party they come from. I also ask the Minister of State to outline in her reply what discussions, if any, have taken place with the disability groups and groups representing the elderly such as Age Action Ireland. I have a document from Age Action Ireland expressing serious concerns about some of the anomalies in the Bill and putting forward suggestions as to how the Bill could be strengthened. It is important to talk to groups like Age Action Ireland which are at the coalface and are working on the ground with many families that have difficulties which this Bill is trying to address.

The Bill aims to update and modernise Irish law in respect of assisting those with limited intellectual capacity. It will enable greater levels of autonomy for these individuals where possible. The Bill also updates the Lunacy (Regulation) Act 1871 and creates a new flexible approach rather than a black-or-white binary division where all decisions must be entrusted rather than a hierarchy of decisions depending on importance. In strengthening the provisions of the Bill, we must ensure its provisions are open to all individuals affected. It should also broaden the number of supports available to those affected. The Bill should be reviewed after five years to ensure it is in keeping with best international practice.

It should also mark an important step towards ratifying the UN Convention on the Rights of Persons with Disabilities, an issue in respect of which there are serious problems.

As public representatives, we must intervene daily on behalf of people with disabilities. They never seem to be able to acquire their rights, particularly from the HSE. A Deputy spends most of his or her time fighting on behalf of such people to get decisions on services to which they should be entitled without ever needing to approach a politician. Unless they have health insurance, more often than not their cases are put on the long finger and they must wait ages for hospital appointments, etc. There is a lack of support for people with disabilities. It is important that these issues are addressed.

To breathe new life into the legal framework, the Government must focus on developing a coherent disability strategy. The systematic reassessment of medical cards has generated considerable fear. This shows that the people in question are the most vulnerable in society. Often they have no one to fight their cause for them. As a result, the Government of the day takes the easy option of cutting back and reassessing their entitlements.

The issue of the wards of court fund has been raised with me by many people since the Bill was printed. The fund has been poorly invested and a pressing area of concern that has been raised constantly by several parents is the lack of transparency in its investment. Families are deeply concerned that investments have gone awry and that the money put aside, usually as a result of a settlement, has been squandered by high-risk investments. Wards have no say in the kinds of investment used by the fund. They also have no access to financial statements beyond rudimentary facts that have to be specifically sought rather than sent out as a matter of course as any normal investment fund would do. Wards are justifiably concerned that the losses sustained by the fund are not being regained, leaving them exposed to insurmountable financial hurdles in the future. They have also raised significant fears about the levels of professional fees being exacted from the fund and the lack of oversight and transparency in that aspect of the process. I have often heard the Minister of State at the Department of Health, Deputy White, who has arrived, discuss openness and transparency. There is a major concern about this fund, how it operates, the level of transparency and the types of investment made.

In this context, people regularly raise another issue with me. If a ward of court needs financial assistance, the level of bureaucracy involved makes it almost impossible for a guardian to get money from the fund to cover hospital and other costs. It takes months. While I accept that money cannot be paid out willy-nilly, it should be freely available following a genuine application.

The Bill provides a range of supports on a continuum of intervention levels, for instance, decision-making assistance, co-decision making, decision-making representation and informal support, in order to support people in maximising their decision-making capacity. These supports should be expanded to encompass all affected persons and backed up by real resources.

The Bill establishes an office of public guardian within the Courts Service, with supervisory powers to protect vulnerable persons. This office needs to be properly resourced to ensure its role in expanding decision-making powers is effectively implemented. When the Minister of State replies, he might outline how this office will work and the number of people who will work in it. For example, will it be a legalistic office or open and transparent? How will it be established? While openness and transparency are important, it is also important that there is a certain amount of flexibility when dealing with the family of a person who is a ward of court.

I could outline the cutbacks to the health services, including services for people with disabilities, for example, the respite grant. However, the important issue is that this Bill is effective legislation and of help to wards of court. For this reason, the Minister of State should consider taking on board positive amendments from this side of the House.

I mentioned Age Action Ireland because I received an e-mail from Mr. Eamon Timmins, who happens to be a Wexford man and the head of advocacy and communication for Age Action Ireland Limited. He outlined a number of areas of concern in the Bill. He believes the Bill needs to strengthen its provisions for making unwise decisions once the consequences are understood. Age Action Ireland fears that the Bill's provisions are vague in this regard. Mr. Timmins also referred to how older people were particularly vulnerable to abuse in their homes, often at the hands of relatives. A misuse of the Bill's provisions for restraining an individual can lead to an abject abuse of power. The Bill allows informal decision makers to use restraints where necessary. Unlike the co-decision makers or decision-making representatives, the office of the public guardian will not review the actions of the informal decision makers. In Mr. Timmins's opinion, these powers need to be removed from that group immediately. Perhaps the Minister of State will refer to some of Age Action Ireland's concerns when replying. Age Action Ireland also asks that the Bill guarantee fast access to free legal aid for vulnerable groups. We all know that free legal aid is slow and cumbersome and there is a long waiting list for the service.

Other than these concerns, Age Action Ireland welcomes the Bill and views it as a move in the right direction, but one that could be improved dramatically on Committee Stage by implementing some of the changes suggested by it and a number of disability groups. I welcome the Bill. I am sure that the Minister is listening and will accept amendments from this side of the House.

I welcome the opportunity to contribute on this important Bill, which we have been seeking for several years. I will identify the positives, but I am also concerned about the relationship with the Mental Health Act 2001, as the Bill does not cover people with mental incapacity owing to mental illness. This Bill proposes a modern statutory framework to support decision-making by adults who have difficulty making decisions without help. It repeals the Marriage of Lunatics Act 1811 and causes the Lunacy Regulation (Ireland) Act 1871 to cease to have effect. When one reflects on the names of both Acts, one realises how outdated much of the legislation that deals with incapacitated people is, particularly as regards people with mental illness. In a previous time, our psychiatric hospitals were called lunatic asylums.

That changed in the 1920s but the word "lunatic" is still used in legislation. We have been raising this for a number of years in the context of the stigma regarding those who have a mental health issue. I will refer to that again later.

The legislation will enable the State to ratify the UN Convention on the Rights of Persons with Disabilities. This is part of the programme for Government. The Bill is considered to be a major step forward in terms of safeguarding the autonomy of vulnerable people in their decision making. In this context, disability organisations have monitored progress on the Bill closely and are anxious that it is enacted without delay. While the Bill does not cover the issue of mental illness, there is a connection with it. For a number of years we have been raising the issue of consultation with those who suffer from a psychiatric illness in a psychiatric institution. They are often ignored by the majority, although not all, of the psychiatric profession. In addition, while there are very good people in the psychiatric profession, the majority of them fail to consult with the carers of people who are suffering from a psychiatric illness. That is a serious fault in how our psychiatric services are administered. A certain section of the psychiatric profession fails to assist families and carers in dealing with the after-care of a person who has been treated as an psychiatric inpatient.

The Bill sets out the important guidelines which will safeguard the autonomy and dignity of the person who does not have the capacity and will apply to all interventions in their case. The most important principle in the Bill is that decision-making capacity is presumed, unless the contrary is shown, and no intervention will take place unless it is necessary. The incapacitated person will be treated as unable to make a decision only where all practical steps to help that person to make the decision have been unsuccessful. Any action or decision made under the Bill must be done or made in a way which is least restrictive of a person's rights and freedoms. The Bill establishes in law the rights and freedoms of all people, regardless of their incapacity. Any action or decision made under the Bill in support of or on behalf of a person with impaired capacity must give effect to the person's will and preference.

There are three decision-making support options to respond to the range of needs. First, the person can appoint a decision-making assistant - in most circumstances this would probably be a family member or a carer - through a formal decision-making assistance agreement to support him or her to access information or to understand, make and express decisions. Decision-making responsibility remains firmly with the person, not with the assistant. The second option is co-decision-making. A person can appoint a trusted family member or friend as a co-decision-maker to make decisions jointly with him or her under co-decision-making agreements approved by the Circuit Court. A co-decision-maker will help to access and explain information relevant to the decision to the person. The co-decision-maker will also help the person to make and express their decision. A co-decision-maker cannot oppose a decision made by the person where it is reasonable and will not cause harm to another person. The third option is a decision-making representative. That is for a small minority of people who are not able to make decisions, even with help. The Bill provides for the Circuit Court to appoint a decision-making representative who will make decisions on behalf of the person, but the representative must abide by the guiding principles and must reflect the person's will and preference.

The current legislation governing mental health capacity dates back to 1871 and is widely considered to be outdated and inappropriate for dealing with those whose ability to make a decision is affected through illness, injury or some other cause. Under the current law a person who lacks decision-making capacity can be made a ward of court. As a ward of court they will not be allowed to make any decision regarding their personal welfare or financial affairs, including the right to marry, enter into contracts or to decide where they live. The Bill defines the decision-making capacity of a person, which is important. A person lacks the capacity to make a decision if he or she is unable to understand the information relevant to the decision, to retain that information, to use or weigh that information as part of the process of making a decision or to communicate his or her decision whether by talking, writing, using sign language, assisted technology or any other means, or, "if the implementation of the decision requires the act of a third party, to communicate by any means with the third party".

I referred earlier to the overlap with the Mental Health Act 2001. We have been seeking a review of that Act for a number of years. Amnesty International has done a great deal of work in this area. There is overlap between that Act and the legislation before us, as mental illness might diminish a person's ability to make decisions. In the case of somebody in a psychiatric hospital or approved centre, both legislative measures are relevant. As a result, some commentators have urged that the two legislative measures "talk to each other" by using the same language and over-reaching principles.

While the Bill before the House has largely been welcomed by stakeholders as a significant and sought-after reform of the capacity legislation, concerns have also been expressed that the provisions of the Bill might not be available to those treated under the Mental Health Act 2001. Of particular concern is the status of patients in a psychiatric hospital or approved centre, who do not have mental capacity but are treated as voluntary patients, not involuntary patients. As such, they are not entitled to a review tribunal or legal representation, as they are if they are involuntary patients under the 2001 Act. Some stakeholders argue that this is a breach of their human rights. In addition, some commentators have suggested that multidisciplinary tribunals, similar to those under the Mental Health Act 2001, would be more suitable than courts for dealing with capacity cases.

The programme for Government includes a commitment to "review the Mental Health Act 2001 in consultation with service users, carers and other stakeholders, informed by human rights standards; and introduce a mental capacity Bill that is in line with the UN Convention on the Rights of Persons with Disabilities".

The vast majority of psychiatric patients in Ireland are voluntary patients. Section 2(1) of the Mental Health Act 2001 defines a voluntary patient as "a person receiving care and treatment in an approved centre who is not the subject of an admission order or a renewal order".

One of the most significant provisions of the Mental Health Act 2001 relates to involuntary patients. The 2001 Act provides that a person who is admitted to an approved centre as an involuntary patient is entitled to legal representation through a tribunal hearing within 21 days of their detention.

The Act, however, does not take mental capacity into account when deciding who is a voluntary patient. Effectively, this means that a person who does not have decision-making capacity can be considered a voluntary patient and is therefore not entitled to the same safeguards as an involuntary patient.

Amnesty International Ireland has stated that "the description of such patients as voluntary is misleading, in that it suggests the exercise of free choice by the individual concerned. This raises a number of concerns from a human rights perspective, some of which have been highlighted most recently by the Irish Human Rights Commission".

In the Bill before us, the Mental Health Act 2001 is referred to as "'the Act of 2001". The explanatory memorandum to the Bill states that section 104 of the Bill "ensures that there is no conflict between this Bill and the Mental Health Act 2001. If a patient is being treated under Part 4 of the Act of 2001, i.e. consent to treatment, then nothing in this Bill authorises a person to give a patient treatment for mental disorder or to give consent to a patient being given treatment for a mental disorder".

Part 9, section 67 of the Bill stipulates that "Where an issue arises in the course of an application to the court or the High Court under this Act, or otherwise in connection with the operation of this Act, as to whether a person who lacks capacity is suffering from a mental disorder, the procedures provided for under the Act of 2001 shall be followed as respects any proposal to detain (within the meaning of the European Convention on Human Rights) that person." The 2001 Act provides for involuntary detention. In the old days that horrible term "being committed to a mental hospital" was used.

The experience both here and in Britain was discussed by Professor Genevra Richardson at a conference in Dublin last year entitled "Looking Globally, Legislating Locally: The Irish Legal Capacity Bill". Professor Richardson cautioned that creating two separate legislative structures, i.e. a Mental Health Act and a Mental Capacity Act, will "inevitably lead to problems at the interface" for those suffering from a mental illness.

In England and Wales, the Mental Health Act 1983 allows for the provision of involuntary medical treatment to a person with a mental disorder. The Mental Capacity Act 2005 provides for a more general framework where decisions may be made on behalf of someone who lacks a decision-making capacity. If someone is deemed to lack mental capacity due to a mental disorder, a doctor will have to make a conscious choice between the two frameworks, either the Mental Health Act or the Mental Capacity Act.

Despite this overlap, Professor Richardson stated that the two statutes are designed with very different aims. The Mental Health Act is designed to minimise the risks to a patient and others, while the Mental Capacity Act is designed to empower individuals to make decisions for themselves where possible.

Professor Richardson has identified four questions clinicians must ask in order to decide between both Acts: does the patient have relevant decision-making capacity; if so, should the Mental Capacity Act or Mental Health Act apply; in particular, does the patient object to admission or treatment; and is deprivation of liberty required.

I will now turn to stakeholders' comment on capacity and the Mental Health Act 2001. Under the current Mental Health Act 2001 a voluntary patient includes a person who is incapacitated. As these people are treated as voluntary patients, they do not have their detention reviewed by a mental health tribunal. Dr. Maurice Manning is president of the Irish Human Rights Commission, IHRC, as well as being a former Member of this House and Leader of the Seanad. He has urged that the new legislation would allow "for an assessment of a person's capacity to consent or object to their admission to a psychiatric institution".

The IHRC recommend that any person deemed incapacitated and proposed to be admitted to an approved centre, should be considered as an involuntary patient under the Mental Health Act 2001. This same point was echoed in submissions by the Mental Health Reform group and the Psychiatric Nurses' Association to the Joint Committee on Justice, Defence and Equality. This would entitle such patients to have their detention reviewed.

The Law Society of Ireland recommends that a specific provision be put in the legislation recommending that a person who lacks the capacity to make a decision cannot be deemed a voluntary patient for the purposes of the Mental Health Act 2001. The society also states that where a person is suffering from a mental health disorder and also lacks capacity, the provisions of the Mental Health Act 2001 will prevail, but the safeguards of a review by a mental health tribunal should also be available to such a person.

NUI Galway's Centre for Disability Law and Policy welcomed the Bill before us and praised its publication as:

a landmark moment in the process of disability law reform in Ireland. Once enacted Ireland should be able to ratify the UN disability treaty. The Minister is to be congratulated for moving beyond traditional guardianship to enable people take charge of their own lives. In particular, as the changed Title of the Bill suggests, it innovates by putting into place supports where needed to assist people make their own decisions and chart their own life choices.

I look forward to the Minister's reply to the Second Stage debate, as I know he has a specific interest in reforming the Mental Health Act 2001. In his response, perhaps he could update us on the current status of the review of the 2001 Act and indicate when amending legislation will be introduced.

I thank the House for the opportunity to contribute to this debate.

I welcome the publication of this Bill, which has been awaited for some considerable time. I wish to reflect on the position on the legislation taken by the Mental Health Reform organisation.

During preparation of the Bill, Mental Health Reform, MHR, made a submission to the Department of Justice and Equality in regard to a number of concerns which it believes should be addressed during passage of the Bill through the Houses.

For the sake of all of those taking note of this particular debate Mental Health Reform, which the Minister of State, Deputy Lynch, is aware, is a national coalition of 40 organisations working to promote improved mental health services and the implementation of A Vision for Change, a policy position we share and universally endorse, in terms of political representation in the Houses. The Minister of State will also be aware that Mental Health Reform has been an active participant of the civil society group that prepared the document, Essential Principles: Irish Legal Capacity Law, which group has endorsed the submission of 4 October 2013 to the Department of Justice and Equality to which I referred earlier.

While the Mental Health Reform submission focuses on specific proposed amendments to the Bill, it reasserts the need to ensure that the legislation as enacted provides a statutory framework for assisted decision-making that is compliant with the UN Convention on the Rights of Persons with Disabilities. I would like to read into the record some of the recommendations proposed by Mental Health Reform in regard to this Bill, which I expect will be reflected in amendments tabled for consideration by the Minister on Committee Stage. I strongly commend the following series of amendments proposed by Mental Health Reform: to ensure that all individuals in approved centres as defined under the Mental Health Act 2001 can avail of the provisions in the Bill; to ensure a timely review and transition of all persons currently subject to wardship; to ensure that the legislation protects people who are incapacitated and compliant; to restrict the scope of informal decision-making, in particular in respect of restraint of persons who are in mental health services, and to address concerns regarding potential overuse of medication; and to introduce advance directives and ensure that these are binding on decisions about mental health treatment, except in life-saving emergencies. All of these are common sense positions, which I strongly support.

While I have not yet had an opportunity to engage directly with my fellow all-party mental health group representatives vis-à-vis their respective positions I would expect, from what I know of their shared enthusiasm for the introduction of this Bill, that they, too, would reflect on these points positively. It is important in mentioning the all-party group on mental health that I acknowledge the important assistance provided by Mental Health Reform to those of us who represent our specific constituent parts of these Houses on that all party group. Along with Amnesty International, Mental Health Reform has been of huge assistance to us. With the departure of Amnesty International from this particular area of responsibility, Mental Health Reform is now our sole resource.

I would like now to deal with some of the areas of particular interest and, in particular, to interaction of this legislation with the Mental Health Act 2001. Mental Health Reform, in arguing for specific amendments to not only be tabled but, hopefully, accepted, welcomes the provisions regarding co-decision making and decision-making representatives in the Bill. It makes the point that to protect the independence and integrity of the position of co-decision makers and decision-making representatives, it is important that the list of persons who cannot act as co-decision makers or decision-making representatives be extended to include staff of approved centres at which a person is a patient. This recommendation needs to be taken on board. It would provide greater clarity and be of great assistance in terms of best practice vis-à-vis co-decision making into the future.

Mental Health Reform believes that it should be clearly stated in the Bill that it applies in full to all patients in approved centres, approved centres being those designated in the Mental Health Act 2001 and that, save as provided in section 104 that the Bill applies to any such patient, an expressed statement be included to this effect to ensure that the benefits of the legislation are available to people in approved centres. This recommendation from MHR is not to be taken as an endorsement of current provisions in Part 4 of the Mental Health Act 2001. MHR's previous submissions to the Department of Health regarding the review of the Mental Health Act 2001 should be read in conjunction with this recommendation. It is important that what has been already submitted by Mental Health Reform is taken into account. However, all of this will be clarified in our elaboration on Committee Stage when specific amendments are being considered.

Regarding wardships, which is another area highlighted by Mental Health Reform, the position of persons who are wards of court and who are detained in approved centres is a matter of particular concern to all of us but of particular concern to Mental Health Reform. It considers it unacceptable that any person currently subject to wardship would remain subject to that regime following the introduction of the capacity provisions under this Bill. Mental Health Reform believes that following passage of this legislation, all wards should, as a matter of right, have immediate access to the range of decision-making supports, including an automatic right to a decision-making representative or co-decision maker where the conditions for same are satisfied. Further, on review, as provided for in section 35(2) of this Bill, the court should be required to make what orders are necessary to ensure that each person currently subject to wardship is discharged from wardship with the appropriate orders and-or directions put in place to ensure that the person previously subject to wardship has the benefit of the provisions of this legislation whether by means of a co-decision maker or decision-making representative, as the case may be.

While a number of other points are made by Mental Health Reform, I would like to deal with its concerns regarding the use of restraint. This is a hugely important area, one which I recall the Minister of State and I have previously addressed in this Chamber. The issue of restraint of relevant persons is addressed by reference to restrictions of decision-making representatives under section 27 of the Bill. Mental Health Reform considers it imperative that the provisions permitting restraint of a person by a decision-making representative should be strictly construed and should explicitly require that the decision-making representative acts in a manner consistent with the principles of this Bill. The provisions should only allow restraint where this is the least restrictive measure to prevent harm.

Before the Acting Chairman rings the gong on me, I will conclude by saying that Mental Health Reform considers that the definition of restraint as provided for at section 27(6) should be extended. I put it to the Minister of State that she should not leave it to those of us in the Opposition benches to come forward with MHR's proposed changes. She should take a look at them, evaluate them, and, if she can make them her own, all the better. All we want to see is that the Bill is at its best and fit for purpose. The organisation is calling for section 27(6) to be extended to include the use of chemical restraint, something not reflected in the current drafting, as I understand it.

I commend the work of Mental Health Reform prior to and since the publication of the legislation. I welcome the publication of the Bill and I look forward to continuing to play an active role in assisting the legislation to arrive at its best possible fit-for-purpose state.

I call on Deputy Tony McLoughlin to speak. I understand you are sharing time with Deputies Anne Ferris and Ciara Conway, with five minutes each.

I thank the Acting Chairman for the opportunity to speak on this Bill, which will have a meaningful impact on many families in Ireland. Over the lifetime of a government many areas of law are examined or renewed from financial issues to family life. Often, when it comes to law reform, governments point to the existing legislation, which may be Acts from the 1930s or 1940s. In some rare cases the relevant law of the day may date back to the beginning of last century. However, in this case we must go back to 1871 to get to the legislation that provides the status quo in respect of the law on mental capacity.

I commend the Minister for Justice and Equality, Deputy Alan Shatter, and the Minister of State, Deputy Kathleen Lynch, on their work on introducing the Bill. The legislative reform of the Minister, Deputy Shatter, compares only to his time as a backbencher when he introduced several Private Members' Bills on a range of issues relating to family law. Many will look back on this time in history as having one of the most proactive governments in the area of law reform. Again, I thank the Minister of State, Deputy Lynch, who, despite a difficult funding time for health, remains deeply committed to providing for our citizens who suffer from mental illness.

The Bill will greatly assist vulnerable people with limited decision-making capacity to better manage their personal, property and financial affairs. It is clear that in the past many people with mental challenges were used and abused by members of their family. Many who showed a slight level of mild mentally abnormal behaviour were made wards of court and decisions were made for them, raising, perhaps, the possibility that those decisions would not have not been made with the input of the person themselves.

The proposed change in the law is welcome. Part 3 provides that a person whose capacity is or will soon be in question can appoint another person to assist him or her in making decisions regarding personal welfare or property affairs. Let us consider, for example, a person in the early stages of the dreaded Alzheimer's disease who has been diagnosed but who has the ability to make some decisions with the assistance of a trusted friend or relative. Such a person can make these personal decisions before their condition gets much worse. Section 11 provides that the authority over decision-making will reside with the person who does not have the capacity to make a decision, while the assistant decision-maker must understand and clarify the will and preferences of the person with the mental challenges and try to ensure that these are carried through.

The option of entering into a co-decision-making agreement is another proposal in the Bill for those who need added support to make decisions jointly. The Bill states that a co-decision-making agreement has no legal effect unless the court approves it by issuing a co-decision-making order. This is welcome and allows, under the eye of the court, for changes to be made or provides for a period of review if circumstances change, such as those relating to the condition of the person. In essence, this is the central plank of the Bill. We all know that some people may need a little help in obtaining information and in understanding their options. The decision-making assistant option will suit such people.

The other option is the co-decision-making option, which may be most suitable for people who need a trusted person to make a decision jointly with them. Many people will be able to using informal arrangements rather than formal agreements. Under the Bill protection in such cases is available.

In many cases there will be a court-ordered decision-making representation. Let us consider a case where a person is involved in a bad car accident, goes into a coma and cannot communicate, or where a person suffers a severe stroke in an instant. The reality is that the law must provide for that scenario. Family representatives or others will be required to act for these people as they would if they had their full senses. The Bill provides for the courts to ensure that this is the case. Let us consider a case where a wealthy man or woman with a number of businesses, perhaps employing 100 people or more, finds himself or herself suddenly in a position of mental incapacity. This is a precarious position for the person in question and for the many people who depend on him or her for their livelihood. It would be wrong to appoint a person with a poor financial track record, for example, a bankrupt, or an appointed person who is not allowed to claim the relevant expenses to perform his or her duty. This is dealt with in the Bill. In such a case the law must act swiftly. I believe we have the proposals in this legislation to deal with such a scenario.

I welcome the proposal to create the office of public guardian to replace the ward of court system. The service will be managed by the Courts Service with the back-up of civil servants. The office of public guardian will, among other things, supervise decision-making assistants, co-decision makers, decision-making representatives and solicitors for the relevant persons. The office will establish and maintain a register of decision-making assistant agreements, co-decision-making orders and decision-making representatives orders along with other relevant supervision. It is clear that the Minister is keen to ensure that an information website is maintained to communicate the guardian's role, which is vital. I believe the passing of the Bill would be a good day's work on behalf of most vulnerable citizens and I welcome it strongly.

This is a difficult subject to legislate for. It is a complex area, affecting a wide range of people with different needs. No matter how it is written, it will never be able to provide an acceptable answer in all situations. It is an area of our legislation that will require on-going monitoring and improvement as its consequences and effects become apparent. In this regard I welcome the inclusion in the Bill of a new office of public guardian to monitor the progress of the legislation. I expect the new office to commence with the clear understanding that this legislation is not written in stone and will need to be updated from time to time to ensure that one of the most basic human rights that a person can make is upheld, that is, the right to make a decision. I would prefer it if the remit of the office of public guardian was extended to monitor the role of informal decision makers.

The risk that any one of us might find ourselves in a situation with reduced capacity to make a decision is never far away. Every time I take my car out onto the road there is a risk that an accident could leave me with reduced decision-making capacity. Age Action Ireland tells us that by 2041, three times as many people in Irish society will be living with dementia. That could include me or any Member present.

The Bill starts out with a presumption of decision-making capacity. Every adult under law will be presumed to have the capacity to make a decision unless their capacity is questioned. That is a vital part of the legislation. Every doctor, nurse, lawyer, garda and family member involved in a situation where a person's decision-making powers are being questioned must first start at the place where the ability to make a decision is automatically presumed and this presumption has legal protection. From that point, it would represent a major legal jump to get to the position of assuming that a person needs assistance to make what could be a life-altering decision and an even greater legal jump to appoint another person, however temporarily, to make decisions on their behalf.

Newspapers last week reported a distressing case in England. In August 2012, Essex social services obtained a High Court order to forcibly sedate a heavily pregnant woman and carry out a Caesarean section to take her child from her. The woman, it was reported, was an Italian national, a mother of two and an airline cabin crew member on a training course in England when she had a mental breakdown. We are told that she was kept in the dark about the legal proceedings and was sedated. When she woke up her child had already been delivered by Caesarean section and taken into care.

Fifteen months later, the child still is in care and may be placed for adoption. Her Italian lawyers are now fighting to have the baby girl returned to her.

In general, I am wary of analysing cases involving child safety issues and vulnerable people, particularly when privacy laws mean that much of the information about these cases is not publicly available. While not all the facts of this case are available, the facts, as reported by the media in respect of the decision-making rights of the woman, appear to be truly shocking. Her lawyers are claiming that all these significant, life-changing decisions were taken on her behalf in a foreign country without any contact having been made with her next of kin in Italy. She was not represented before the court that had ordered her baby to be removed because she had been deemed not to have any legal capacity because of her reduced mental capacity. This is an extreme and shocking case and, as I noted, not all the facts are available but they illustrate clearly the reason the highest legal protection possible must be given to people who find themselves in a situation of reduced decision-making capacity.

The Bill before Members today represents a marked improvement on the existing wards of court system, which automatically removes legal capacity from persons with diminished mental capacity. The new legislation changes that position and offers support to those who need help to exercise their legal capacity. I welcome the spirit of this legislation and trust that its implementation is something the Department of Justice and Equality, as well as the new office of public guardian, will be monitoring closely and carefully to ensure this basic human right is protected for all citizens.

I thank the Minister of State and I am pleased to speak on what is, as noted by my colleague, Deputy Anne Ferris, important legislation that seeks to redress a number of important issues that have been ignored for too long. I thank the Minister of State for her determination in getting the legislation to this Stage. She has taken a special interest in ensuring the Bill is moved along. A welcome feature of the Assisted Decision-Making (Capacity) Bill is that it moves away from the way of looking after what have been decided are people's bests interests. Instead, it recognises a person's fundamental right to make decisions about his or her own life. This is about giving power back to the individual, which has been absent in far too many lives - often at the behest of the State - and I welcome the change encapsulated in this legislation.

This Bill will enable and support people in that decision-making process. It will give more autonomy to those who are affected or are likely to be affected by incapacity by replacing the current wards of court system with a graduated supported decision-making framework. There also are provisions in the Bill for the transfer of the supervision of existing wards to the public guardian and the repeal of the Marriage of Lunatics Act 1811. Words like "lunatic" have no place in the modern vocabulary when it comes to describing mental health issues. The word "lunatic" is out of date, inappropriate and insulting. Members are aware that language matters and I am glad this word is to be eradicated from the legislation. It belongs in the past, much like the legislation this Bill seeks to correct and update.

Another important aspect of this Bill pertains to international human rights. This legislation will pave the way for the State to ratify the UN Convention on the Rights of Persons with Disabilities. It will give effect to Article 12 of that convention, particularly in respect of equal recognition before the law, regular review, adequate procedural safeguards and access to the support required to exercise legal capacity. This relates to people's fundamental rights to make decisions. I have first-hand experiences from working within the mental health services, within long-stay mental health facilities and within day services that, over the years, bit by bit, decision-making and capacity have been eroded and taken from people who have become institutionalised and reliant on others, as well as on systems and the State, to make decisions on their behalf. I believe this legislation will give back this fundamental right to people to make decisions about their own lives.

The Law Reform Commission made a number of strong recommendations on this Bill that are strongly reflected in the legislation, which is greatly to be welcomed. More than 70 written submissions were made on this issue to the Joint Committee on Justice, Defence and Equality last year, thereby demonstrating the level of interest and consultation,. This was a welcome process in the negotiation of this legislation. As mentioned, some major changes in this Bill include the fact that a new legal framework will replace the wards of court system. The Bill will change the law in order that decision-making is assessed on an issue and time-specific basis and will provide for a range of different types of assistant decision-makers. The proposed office of the public guardian has been referred to by a number of previous speakers and is to be welcomed strongly. The replacement of the wards of court office by the office of public guardian is a positive development. This office will have supervisory powers to protect vulnerable people. It will modernise the law on enduring powers of attorney and will provide for advance care directives. Again, while this is about protecting those who need help, namely, the most vulnerable, it is also geared towards helping many people make decisions about how they might be cared for in the future. The point has been raised in the Chamber that Members must ensure funding is in place to enable the office of the public guardian to operate effectively. I urge the Minister of State to give serious consideration to this issue because it is fundamental to ensuring the protection of this most sacred of rights, namely, that of people to make their own decisions.

This Bill marks a shift away from paternalism and the paternalistic way of looking after what one decides are people's bests interests. Instead, it recognises a person's right to make decisions about his or her own life, and enabling and supporting him or her in that decision-making is fundamental. The Bill sets out a menu of options to respond to people's differing needs. An effort has been made to recognise that citizens have different needs, and this must be welcomed. Some people may need a small amount of help in obtaining information and in getting to grips with systems. Everyone needs that from time to time and we all rely on friends and agencies to help us get such information to make correct decisions. I acknowledge we do not always make correct ones. The decision-making assistant option will suit such people.

The co-decision making option might be most suitable for those who need someone to help them to make a joint decision. Such people will be able to enter voluntarily, which is highly important, into a co-decision making agreement with trusted friends or relatives. The Minister of State, Deputy Kathleen Lynch, made the point on the publication of this legislation that many people will be able to use informal arrangements rather than formal agreements. However, the Bill also must provide for formal agreements. In a minority of cases, there is provision for court-ordered decision-making representation. This will be an option of last resort but I reiterate the reality must be reflected in law to provide such an option. In such cases, the representative will be required to act faithfully as the individual's voice. In all cases, the person's will and preferences must be centre stage.

I conclude by reflecting again on what an important and fundamental right it is for people to have the opportunity and power and to be empowered to make their own decisions about their own lives.

I welcome the introduction of this Bill. I commend the Minister of State and the departmental officials on producing this substantial legislation in an area that is complex, sensitive and vital for a huge range of people who will be affected by it, be they those who were born with incapacities or disabilities, those who developed them, or elderly people. Huge numbers of elderly people develop dementia and of the half a million elderly people in the State, 44,000 of them, which is a substantial proportion, have dementia.

We are speaking here about huge numbers of people who are affected, including the families and loved ones. I do not pretend to be an expert on this. In so far as I have developed any awareness or understanding of it, it is because I have been pressed to do so by constituents who are affected. On foot of those representations I have asked about the Bill on the Order of Business. On a number of occasions I asked on behalf of one family. I will not mention it by surname but I commend it for its interest. The family member concerned is April, who is a ward of court and is a constituent of mine. Her guardians, Jim and Noelle, are very concerned that this legislation will be passed.

I would also like to pay great tribute to the range or organisations who were mentioned earlier which have scrutinised the Bill, made submissions and are still seeking further amendments to make it everything that it needs to be. I believe we are all agreed that it is long overdue, that laws that even refer to concepts such as lunacy are outdated and unacceptable and that we should not in any way be governed by such laws that make reference to such categories. It is, therefore, welcome that we finally have a chance to discuss these issues and try to legislation in a humane way, in a way that, as has been said by other speakers, starts from the simple premise that because one has a disability or incapacity that does not mean one should not enjoy any less the rights available to any other citizen. It is about ensuring and underpinning legally the idea of equality for all citizens, be they elderly, incapacitated or disabled in one way or another.

I fully accept the bona fides and commitment of the Government in terms of the stated intention of the Bill to try and improve the situation in that direction. The stated intention of the Bill that people must have the right to make decisions themselves in so far as that is possible must be vindicated. In this regard any assistance, support and legal underpinning must be given to them so that they can make their own decisions about their lives, their treatment, the care they may receive, where they live and their financial affairs. In April's case as a ward of court, a big issue was her right to control her own financial affairs.

This is not the place to discuss issues we have debated many times in this forum, such as cuts to services and so on. However, in order to give full effect to legislation that is attempting to move in a positive direction, it is not enough to enact legislative provisions. To do many of the things the Bill seeks resources are required. An example in this regard is one that received considerable public attention a couple of years ago. In one institution people with mental illnesses were essentially, because of cutbacks, locked up in an unsuitable and inappropriate ward over Christmas because of staff shortages. We should seek to have the best legislation in place and while I fully accept the intention of the Bill to provide the best legal situation in terms of equality and rights, without the resources to secure full vindication serious problems can arise. The rights of people can conflict with the ability of the State to deliver and resource those rights.

Another example along these lines concerns a residential home in Monkstown in my own area which caters for the severely physically disabled. I think of two categories of people in there at the moment. One woman campaigned for a long time that she should not have to be in this residential environment and wanted to live in her own home. She had to fight for the right to do that against those who said she was better off in residential care where she would be looked after. One of the submissions concerning this legislation referred to a similar case in England where the courts decided that even if it was the case that there might be certain dangers associated with somebody living alone, that person had the right to make such a decision about their own life and to have that level of autonomy and personal dignity, including if needs be how that person should die. That is a right and I am glad to say that the woman to whom I referred earlier eventually won her battle to live where she wished. She had to fight a battle against those who thought, and perhaps with good intention believed, it was not in her in best interest to do so.

However, in that same home a situation has arisen, because of threatened cutbacks and closures, where many other residents do not want to leave. Just a few years on the situation has now been reversed on the back of cuts, austerity and so on. People are now being told they will have to be cared for elsewhere, ideally in their own home or with family members. Many people there do not want to leave as they have been happy to be there.

These are examples of how in order to underpin the legal rights we are endeavouring to enshrine in this legislation, the issue of resources is very important. Many of the issues under discussion are sensitive and complex. As one who is inexpert in this area I must emphasise it is crucial we listen to the people who know. In so far as I have learnt anything in this area it is from those who know, including those directly affected, that is, those for whom we are legislating as well as those organisations which help them and have developed expertise in these areas.

Legislation such as this, which deals with complex and sensitive issues, cannot be set in stone. It must be a work in progress and one that is subject to review. There must be an openness on the part of the Government, as the Bill makes its way through the Oireachtas and subsequently, to listen and take on board the views of those who know at first hand what is needed, what are the deficiencies and what assistance and supports people need in order to have the right which the legislation seeks to enshrine. It is the right to make decisions about their own lives.

As other speakers have said, there are a number of key points in that regard that those groups of organisations have set out as priorities on which they still hope there can be further amendments and refinements to the legislation. I hope the Government is open to that discussion and to trying to refine the Bill as it passes each Stage in the Houses. We must first have the strongest presumption of capacity, the right to legal capacity and safeguards about choosing co-decision makers who will assist people who have difficulty in making decisions to make sure that people have the fullest autonomy to make the decision about who they want to assist them. The provisions and rights enshrined in the Bill should extend to everybody who has an incapacity or a disability, particularly those in prescribed mental health institutions.

The other issue that was mentioned is the advanced care directives. Where people still have the capacity, which they may lose subsequently, they should have the right, in as far as is possible, to make decisions in advance about what they do and do not want in terms of treatment, how they will end their lives and various other decisions. That is complicated because as some of the submissions indicated, it is sometimes easier to legislate for what people do not want than to legislate for what people might want in future situations. In complex areas such as that it is a question of going through this legislation line by line and trying to get the best formulations that are specific enough but flexible enough to accommodate those grey areas and complexities in the best possible way.

The issue of restraint is critically important. One of the popular dramatisations of neglect and abuse in these areas was "One Flew Over the Cuckoo's Nest", which is a brilliant film that dramatises those issues very well. It showed how people were subject to abuse in particular situations. The film was set in the United States and showed how people were force-fed drugs they probably did not need, subjected to forced electrotherapy and so on. It was a shocking dramatisation of the potential for abuse where people are categorised as being mentally or physically incapable. I am not saying that persists here but there is always that potential where there are prejudices and stigmas. Where people do not fully have the capacity to articulate their own desires, views and needs there is always the potential for them to be mistreated, abused, ignored and dismissed, and restraint being the most serious example of that. Another brilliant book is Sylvia Plath's The Bell Jar, which is a similar instance about women in the United States treated in that way and categorised as mentally unwell, incapable of making their own decisions and therefore becoming subjects of abuse and victimisation.

In terms of restraint, the various organisations have mentioned not just physical restraint but also chemical restraint and the misuse of medicines to restrain people unnecessarily. This is not just a point for people with incapacities. There is a more general issue in that it can often be cheaper, easier and, for some pharmaceutical companies, more profitable to give people drugs than to listen to them. I attended a very interesting meeting recently of psychiatrists and people involved in the critical psychiatry movement who spoke about that. There is a real issue that we need to examine in that regard. There is a more general issue in the area of mental health but when we are talking about people in mental health institutions this is an area about which we have to be careful. We have to try to ensure that people are not being given, for the wrong reasons, drugs to restrain them because it is easier to do it that way to manage them. We have to avoid doing that and listen as much as possible to the people themselves, allow them identify the help they need, and not have other people deciding what is best for them, often on the basis of what is easier to manage certain situations.

Another area that has been highlighted is the right of people to appeal decisions where they believe their rights have not been fully vindicated, they have not been listened to or decisions are being made on their behalf that they do not believe are in their best interests through an appeal mechanism. I welcome in that regard the proposal on the office of the public guardian. However, I echo the point made that when we are talking about co-decision makers the group of people who should not be allowed on that list is those who work in institutions because there is a potential conflict of interest in that regard. On the other side of that equation the idea that we have an independent body, an office of the public guardian, that will monitor and make sure that the rights and best interests, as the people themselves see it, are upheld and vindicated is the right approach.

I welcome the legislation and the debate. I congratulate the officials on what is a detailed and complex Bill. I am sure a good deal of work went into it but I hope that as it passes each Stage in the Dáil, there will be an understanding and a recognition that there is probably still work to be done on it in terms of refinements and that all the stakeholders and the people who have knowledge and expertise in this area will have the opportunity to fine-tune the Bill to make it the best possible legislation.

I commend the Minister, Deputy Shatter, and the Minister of State, Deputy Lynch, on their work on the Bill to which I will allude later.

In 2007, Ireland signed the UN Convention on the Rights of the Person with Disabilities. I am proud to say that we were one of the first countries to sign that convention. When we signed the convention in 2007, we were making a commitment, under Article 12, to reaffirm that people with disabilities have equal rights to recognition before the law; recognise that people with disabilities enjoy legal capacity on an equal basis with others in all aspects of life; take appropriate steps to support people with disabilities to exercise their legal capacity; and provide appropriate safeguards against abuse.

The Lunacy Regulation Act 1871, which is outdated and constrictive legislation, was blocking us from being able to ratify the convention due to its confliction with Article 12 and before we could ratify it we needed to first have the appropriate legislation in place.

As Deputy Boyd Barrett said, the word "lunacy" brings up all the wrong connotations. It is an insulting word which should no longer be used in any discussion as it brings up everything that is wrong and it has a terrible history.

Some would say there has been an inordinate delay in bringing this legislation forward and, to some degree, that is a valid point. However, it is arguable that the legislation needed to be as subtle, complex and sensitive as it is. That has been achieved in the drafting, which is important.

The legislation represents our commitment to and recognition of the various obligations under the convention. It represents a fundamental enhancement of our legal system, providing those who are most vulnerable with the necessary supports and assistance in making decisions that have a profound effect on their lives. At long last, we have legislation which recognises a person's right to make his or her own decisions, regardless of his or her cognitive ability. In cases where a person may lack the capacity to make such a decision, and only when it is established he or she lacks such capacity and nothing can be done by way of intervention by professionals, there will now be a range of supports available enabling and assisting him or her in the decision-making process.

I would like to comment briefly on Part 2, section 8, which deals with the guiding principles that will apply before and during an intervention of a person to whom the Bill refers to as a relevant person. This Part ensures that a relevant person will be assumed to have the capacity to make his or her own decisions independent of any kind of external assistance unless it is medically and legally proven to be otherwise. The emphasis must be on that.

It merits saying that we cannot avoid our dark past. We tend to romanticise our past which, at times, is understandable and fair enough but this is part of our history that we share with a number of other countries and many civilisations and cultures. There is no escaping the reality that part of our culture, our heritage and our past has been the horrendous abuse of people who lacked capacity - people who may have been a little slow in the conventional sense - and that was used as a pretext to institutionalise them or to almost imprison them in the home and remove from them decision-making. The whole area of lack of capacity and weakness in people - sometimes physical weakness, sometimes mental weakness or a combination of both - was often used abusively by relatives perhaps because of property considerations, testamentary matters with a view to the acquisition of properties, etc. In many instances, it was abuse by very close relatives. It was also abused at institutional level and by supposed friends. This is part of our heritage. There is anecdotal and sad evidence of this in every community and in almost all families, if they were to look at their extended families. This kind of behaviour was rampant throughout the country. There is no escaping that and we need to recognise it as we discuss the legislation. We need to apologise to past generations for that and assure ourselves and give an unequivocal commitment that this will never happen again. It is critical that this legislation, coupled with pending legislation and the work of Cabinet and the Minister of State, Deputy Lynch, draws a line in the sand and that we have a legislative framework which will do so.

When I went through the legislation, I thought one could not discuss it without accepting this dark past that we should feel ashamed of, sorry for and want to rectify in the future. This was often done by people who considered themselves extraordinary Christians and pillars of society and for that reason, it was all the more reprehensible. It is important we get away from that.

Every person, regardless cognitive ability, has the right to an opinion on the decisions that need to be taken in his or her life. It is very important that is understood and accepted and that the dignity of the person is not removed by a lesser level of capacity, as is our conventional understanding of the term, or by a particular illness or set of circumstances. Age Action, which is happy with much of the legislation, believes that people with dementia can make important decisions about their lives, which is a very important point. Dementia can be incremental and can take many forms. Older persons should be able to make decisions about their lives and I intend to return to the advanced care directives later.

I am also pleased to see that no intervention can be made without prior regard to a person's individual circumstances and an assurance is given that the least restrictive option must always be taken. Historically, if a person was deemed by the courts to be incapable of managing his or her own property or affairs, then a committee was set up to control the assets on the person's behalf. This person would be deemed to be a ward of court and taken into wardship, which has a very Victorian ring to it. If a person was taken into wardship, then, among other restrictions, he or she was unable to marry or travel abroad, without prior permission of the court. This was very outdated and at times a degrading process for an individual to go through. I encountered a person who had a dreadful accident and who was a ward of court. This was a very paternalistic system but, thankfully, it will be amended by the legislation.

In Part 3, section 10(1), a more holistic support system is introduced. A trusted friend or relative can now support the person in making decisions instead of a committee. This is a very good option for those who only need a small amount of help in getting the appropriate information to make an informed decision. This leads on to Part 3, section 11, where it stipulates that the decision-making authority will remain solely with the appointer and the appointer will be actively assisted, typically by family members, relatives and carers, in accessing and understanding information, making and expressing decisions on matters and in implementing the decisions made. Throughout the whole process, the assistant must keep in mind the will and preferences of his or her appointer, ensuring that any decisions made are solely in the best interests of the relevant person and that he or she represents that person's preferences entirely.

I did not read the Bill forensically or with a lawyer's eye but it will be very important - I am sure this has occurred to the Minister of State but it merits repeating - that we are sufficiently careful in the implementation of this legislation that it does not become a charter for abuse or that a slick neighbour, a slick relative or a slick carer could be become an abuser using this process. That is why it will need to be constantly reviewed, very restrictive and very careful in that area. I would be grateful if the Minister of State would responded to that and reassure the House on that score that it has been well thought through and that she believes the legislation protects against that.

I would be grateful if the Minister of State, Deputy Kathleen Lynch, would respond to that in her final comments. Perhaps she will reassure the House that this has been considerably thought through and that she feels it is protected by this legislation. It occurs to me that it would be shocking if this legislation, despite its great intentions, were once again to facilitate an abuser by allowing him or her to pose as an assistor who is giving good advice. It is very important that this would not be the case.

I welcome the inclusion of family members, relatives and carers in the list of those who can be appointed as assistors, with the caveat I have mentioned. People with moderate to severe learning or cognitive difficulties usually depend on and place great trust in their family members or their carers. That is why the inclusion of these key people in the decision-making process is paramount. While there will be no question about the bona fides of the family member or carer in the vast majority of cases, I reiterate the caveat that we need to be careful to protect vulnerable people. We must ensure that no one of a wrong type slips through the net. This measure reinforces the point that the relevant person must feel that his or her voice is being heard and be able to trust the system that is in place for him or her.

Section 12 lists the criteria that a prospective assistor must meet prior to appointment. I welcome this inclusion as it represents responsible safeguarding for those who could be deemed to be vulnerable. I have spoken at length about this aspect of the matter. While I am glad that section 12 attempts to keep this structure in place, I would like to hear the Minister of State speaking about the matter on the record of the House.

Section 10 ensures that any appointment of a decision-making assistant must be made by means of a decision-making agreement. This is similar to the legislative position in the Canadian province of Alberta, where "co-decision-making" is practised in cases where the capacity of a person is in question. That legislation ensures that the adult and his or her co-decision-maker make decisions together and that all decisions are made in the best interests of the assisted adult. The relevant person must agree to the arrangement and to the person who is appointed as his or her co-decision-maker before anything can take place. Dr. Brendan Kelly, who is a consultant psychiatrist in the Mater Hospital, would refer to these measures as the "empowering principles" of the Bill. I commend the Minister and the Minister of State in this regard.

We are ensuring in this legislation that every person in the State has dignity, autonomy, physical integrity and privacy. These key rights should never be under any doubt for anyone in this country, regardless of that person's cognitive or physical ability. I am glad they are now enshrined in law. The Ceann Comhairle and I attended a very important function in this House today that related to the work of the Council of Europe. The sound principles of natural law about which I am speaking are of great importance for the Council of Europe, of which Ireland is a founding member.

The further safety measures included in section 17 of this legislation provide for a periodic review of a co-decision-making order within between nine and 15 months. That review is vital and must be adhered to. There must be no doubt about the implementation of this provision. Equally, the question of resources being unavailable must not arise. There will be a review every three years thereafter. This is important if the relevant person's capacity improves or deteriorates, or if the relationship between the relevant person and the co-decision maker breaks down to the point that making joint decisions is no longer possible, which can of course happen.

The new office of public guardian, which is introduced in Part 8, replaces the old ward of courts system. This important new office will oversee the whole process, in effect. The public guardian, who will be appointed by the Minister and will be based within the courts system, will supervise decision-making assistants, co-decision makers, decision-making representatives and attorneys for relevant persons.

I understand the Minister of State intends to provide for advanced care directives on Committee Stage. This is a very important principle. It is important that people with specific deteriorating conditions are able to set out a programme for their care. I take the points that have been made about the legal complexity in this regard. We are aware of that. A person who is a fantasist might set out unrealistic situations. All of that will have to be legislated for and dealt with when the Act is ultimately being implemented. Having said that, it is good and right as a principle that people should be able to dictate where they want to be. This could be done by the individual or by a care agent.

It is important that a relatively well-resourced person who wants to map out a system of care within his or her own home or apartment should be able to bring in medical support and nursing assistance, etc. Plans of this nature are sometimes thwarted by family members who argue that it is better for the person to be in a nursing home. If the person's wish is to be at home and to receive a particular type of care, that is his or her prerogative. We should be watching to make sure that wish is not thwarted. As practising politicians, we all know from our constituency work of cases in which people who want to be at home, and have a right to be at home, have been put into care or subtly forced into care. If this cannot be said to be stealing from them, it is certainly a form of theft, in effect.

I agree with Deputies that as our economy improves and we begin to benefit from the necessary policies of the last few years, it is important to resource this whole area, including the implementation of this legislation. As resources become available, we can make amends for historic failures in the mental health area - the abuses that took place and the incarcerations that were wrongly permitted - by resourcing mental health properly. Mental health supports should be resourced at community level and at every other level.

I am proud to have had the privilege of being the founding chairperson of Bailieborough Mental Health Association. I have a great interest in this area. We built up the association to the point at which it had up to 100 members. We organised various activities, including holidays for the members, and a whole social programme. Thankfully, this very effective mental health association still exists. The Minister of State knows my colleague, Councillor Seán McKiernan, who is an area development officer and a resource director with Mental Health Ireland. I am proud to have been associated with this important area of work. As funds become available, we need to resource mental health and thereby make apologies for the past.

Change is badly needed in this area because our current system is antiquated and restrictive. It does not represent best practice. In many ways, it infringes on the basic rights of a person who is deemed to be incapacitated. I commend the Minister, Deputy Shatter, and the Minister of State, Deputy Kathleen Lynch, for all the hard work they have done, along with the officials in the Department, to ensure this legislation has finally been brought before the House. As Saint Thomas Aquinas wrote, the human person is "an intelligent being endowed with free will and self-movement". This legislation acknowledges this fact regardless of circumstances.

I am pleased to have an opportunity to speak on the Assisted Decision-Making (Capacity) Bill 2013. I note that the Minister of State has consulted various interest groups and experts in preparing this complex legislation. I commend her for the energy with which she has taken an interest in this matter over recent years. I congratulate her on bringing this Bill, which has been in gestation for such long time, before the House. It has been repeatedly delayed and is long overdue. Over five years have passed since the scheme of a mental health capacity Bill was published. It is regrettable that it has taken so long to get to the point at which substantive legislation is being progressed through the House.

The key principles of this Bill, as outlined by the Minister of State, represent an important step forward in this whole area. I refer in particular to the decision to bring the wards of court system to an end and provide for a better legal framework. I am pleased that the current all-or-nothing status approach is being abandoned in favour of a more functional approach. I also welcome the section of the Bill clarifying the law in relation to carers. As the previous speaker said, carers are often left in a very difficult situation. The Bill still requires carers to deal with the legal system, which many people will find quite difficult to do, but it certainly clarifies the law to a considerable extent.

The Bill represents a welcome reform to the law on mental capacity. In Ireland, we have operated under an archaic system, particularly by continuing to have the Lunacy Regulation (Ireland) Act 1871 on the Statute Book. The persistent failure to reform this area has met with criticism internationally, including by the Council of Europe and the United Nations. As the Minister of State has pointed out, the Bill will facilitate Ireland's ratification of the United Nations Convention on the Rights of Persons with Disabilities 2008. It is of course most welcome that the State would ratify the convention. However, concern has been expressed that the Bill does not go far enough to ensure the State is compliant with the convention. I note the Bill makes specific reference to giving effect to the Hague Convention on the International Protection of Adults, which is also welcome.

As has been widely acknowledged, the Bill contains a functional approach to capacity in section 3 and we have rightly moved away from the other status-based approach or the outcomes approaches. This is very welcome because the "best interests" test of capacity was contained in the general scheme of the Mental Capacity and Guardianship Bill 2008. The general approach of looking at functionality in determining an individual's capacity has been recognised as best practice nationally and the paternalistic "best interests" approach is being moved away from.

There are extensive provisions in the Bill with regard to the decision-making assistance agreement under section 10 and the co-decision-making order in section 18. The Bill contains further extensive provisions concerning the power of the court to make orders and appoint decision-making representatives. Of course, there is no automatic right to legal representation in all these categories of cases, which is something the Minister of State might consider for inclusion on Committee Stage. Clear rules are obviously important in this context. However, some experts have called into question whether the operation of some aspects of the Bill actually adopts a functional approach to capacity. Dr. Eilionóir Flynn of the Centre of Disability Law and Policy at NUI Galway has suggested that the new regime under this Bill could still effectively provide for a continuation of facilitating substitute decision-making. She has suggested that the use of the word "guardian" in the office of public guardian due to be established under Part 8 of the Bill is problematic because guardian suggests an approach whereby substitute decision-making would be the norm.

Another concern with the Bill is the future interface between this legislation and the Mental Health Act 2001, which relates to people with mental disorders. However, voluntary patients have few of the safeguards that apply to involuntary patients detained under the Mental Health Act 2001. This is a particular problem for incapacitated compliant patients or the de facto detained. English mental health law has been amended to address concerns about the potential lack of safeguards around administering treatment and the detention of incapacitated compliant patients following the decision of the House of Lords in HL v United Kingdom. The relevant legislation in England and Wales was amended after the House of Lords criticised the lack of formal safeguards in place for the applicant's detention in that case. One academic commentator, Dr. Darius Whelan of University College Cork, has suggested that even with the reform to capacity legislation contained in this Bill, the so-called Bournewood gap, identified and mostly remedied under English law, will still persist under Irish law. As the Minister of State knows, the Bournewood gap refers to people who enter institutions voluntarily and later become incapacitated. How will the Bill address the concerns of such citizens?

Age Action Ireland has helpfully prepared a very insightful analysis of the Bill for Deputies. I share some of its concerns about this Bill, particularly in the area of restraint. It has been suggested, for example, that the Bill fails to set out any mechanisms to deal with an unlawful deprivation of a person's liberty and this must be resolved. Again the Minister of State may consider addressing this on Committee Stage. Age Action Ireland has cautioned that in the particular context of older citizens, a misuse of the Bill's provisions for restraining a person could lead to an abject abuse of power. As Deputy Reilly indicated, we have a dreadful history of elder abuse.

A related concern about the Bill is the lack of specificity about the powers of informal decision makers under Part 7. It has been suggested that because informal decision makers are not subject to invigilation by the office of the public guardian, potential problems may arise and the general spirit of the Bill, which is to have supported decision-making and a functional approach to capacity, will be eroded by potential overuse of the informal decision maker's powers.

I am also concerned about the onerous obligations the legislation could impose on some carers, who are already going through a time of very real difficulty when caring for a vulnerable adult or child. A number of commentators have urged that the office of the public guardian must be adequately resourced in order for it to be able to perform its functions satisfactorily. I note we received a basic cost analysis in the very fine document prepared on the Bill by our Oireachtas research staff.

A comprehensive information campaign should accompany the enactment of the Bill so that affected persons will be supported in knowing their duties and obligations: I am sure the Minister of State will do that. In a similar vein, it has been suggested that legal aid for matters arising under this Bill should be fast-tracked, rather than having to go through the regular legal aid process. Perhaps this could be remedied on Committee Stage.

I thank the Ceann Comhairle for indulging me with some extra time, as he often does. Overall, I welcome this Bill. I commend the Minister of State on her extensive efforts. The Bill has been talked about for 20 or 30 years and we finally have it before us. Some of the key concerns identified by experts in this area should be considered and the Bill could be amended on Committee Stage. The scope of the powers of informal decision makers should be more clearly defined and if necessary circumscribed. Amendments should also be made to the provisions of the legal aid legislation to ensure speedy access to legal aid for vulnerable citizens affected by this legislation, particularly as the legal framework for those who may avail of this legislation is becoming much more complex.

I propose to share my time with Deputy Stanton.

Is that agreed? Agreed.

I congratulate the Minister of State on introducing the Bill. It goes without saying that the Acts of 1811 and 1871 are somewhat out of date like much other legislation. It is a worthy decision to bring the Bill before the House. Other speakers have already referred to its merits and demerits and, of course, there are always swings and roundabouts with such legislation. In the course of our constituency work we have all come across cases where there was an obvious need for somebody to have assisted another person in making a decision at a particular time. Other cases have come to our attention where the intervention, allegedly to assist the person who required the decision-making assistance, resulted in the person not receiving the best advice in his or her interest, and ending up in court and eventually in family disputes and so on.

In these cases we need to recognise the necessity to ensure that the person, who is deemed to require assistance in making a decision, gets that advice impartially in his or her interest with due regard for natural justice and the law. For instance there would not be much sense in a vulnerable person receiving advice that was legally wrong and that could lead that person into difficulty at a later stage. The presumption is that this legislation will be able to cross that particular Rubicon and deal with that vulnerable person, regardless of whether he or she has a disability from birth or as a result of an accident. We have all come across cases where a person as a result of an accident found himself or herself vulnerable and totally dependent on those around him or her. Sometimes helpful family members become involved in a way that is not to the advantage of the person with the particular disability. Sometimes non-family members become involved by way of association or whatever, ultimately leading to the person with the disability ending up in a far greater disability.

I strongly support the legislation and the concept behind it. However, due regard must be given to the need to monitor on a fairly regular basis the legislation as it applies in order to ascertain the extent, if at all, to which it is operating properly and working smoothly. The decision-making capacity is presumed unless the contrary is shown, but shown by whom? Is it on medical evidence, legal evidence, history or some other basis?

While I know the criteria set out in the Bill, can we be certain that due regard will be had for natural justice and the course of law in all cases of a person on whose behalf a decision will be made, or who will be assisted in that decision? The Bill provides correctly that no intervention will take place unless it is necessary. That goes without saying. It also provides that a person will be treated as unable to make a decision only where all practicable steps to help that person make a decision have been unsuccessful. That is good but the devil is in the detail. How does one come to that conclusion? Will the Minister of State in her reply give some indication as to the swings and roundabouts and the cross-checks that will apply in that situation? I am sure that everybody in this House has dealt with cases where advice was given to a person who was vulnerable at a particular time, whether suffering from a mental or physical disability which was shown to be wrong at a later stage. That does not necessarily mean that the person giving the advice and assistance will be the beneficiary. The advice can be wrong and not to the advantage of the person in need of that decision-making assistance. Any act done or decision made under the Bill must be done or made in a way that least restricts a person's rights and freedoms. That goes without saying.

The Bill proposes certain decision-making support options: assisted decision-making and co-decision making, which could involve family members or a group of people. This is along the same lines as the wards of court. The wards of court system has been greatly beneficial in defending the rights and entitlements of vulnerable people. It has also been shown not to be accessible and not capable of dealing with situations that emerge over time and we need to keep that in mind.

In respect of powers of attorney how can one be absolutely certain that the powers of attorney are given with due observance of the law? For example, I have dealt with cases, and I am sure that the Ceann Comhairle must have come across them too, in which it has been suggested to me that when the person granted power of attorney it was contended that he or she was not in a position to make the decision to confer power of attorney on anybody. There have also been numerous cases in which a family becomes entangled in a legal argument after the death of the unfortunate person. This all has to be addressed and we find ourselves going back into a maze and ask ourselves how it happened in the first place. It is very difficult to be absolute in the determination of what is right and wrong in this type of situation. Are legal and medical opinions available to those who will assist in the decision-making? Are those who provide the opinions fully aware of their obligations under the proposed legislation when giving their opinion?

An office of public guardian is proposed. This will be set up within the Courts Service to replace the Wards of Court Office to manage capacity-related matters for adults. The office of the public guardian will supervise and handle complaints against decision-making assistants as well as against the co-decision makers, decision-making representatives and attorneys of enduring powers appointed by the court. It will also prepare codes of practice for specific groups and will promote awareness of the legislation among the general public. This will all come under the jurisdiction of the Circuit Court, and I presume of the High Court and ultimately the Supreme Court, in the event of there being a requirement to go there. In a time of restricted finances would it have been possible to consider reference to the Office of the Ombudsman in such situations? It would offer a different opinion. It could be consulted in such situations which could benefit to the whole decision-making process and might have some impact by establishing continuity, in a system that is recognised as having universal application around the country.

My colleague, Deputy Joe Reilly, mentioned abuse. Abuse can come in many shapes and forms. It can be detention against the person's will. It can be the result of a person's being placed in a vulnerable position under the care or control of somebody else who has no such diminished capacity and who may or may not exercise that control in the interests of the vulnerable person. The State in the past has supervised abuse. We have all talked about it in this House. There have been numerous situations in which vulnerable people, children and adults, have been in the custody and care of the State and have been abused to a colossal extent. That is a sad reflection on our society. I hope that this Bill will address that issue in a way that it has not been addressed before and that it will prevent the possibility of a situation arising in which vulnerable people, who need support, care and appropriate treatment, are deprived of their constitutional rights as well as everything else in the course of what follows. I hope that this Bill will address those issues in a fundamental way and protect the rights of the people for whom it is intended in the first place.

I am Chairman of the Oireachtas Joint Committee on Justice, Defence and Equality. The Minister for Justice, Equality and Defence, and the Minister of State at the Department of Justice, Equality and Defence, Deputy Kathleen Lynch, sent us the heads of the Bill. I think that was in 2012. We called for submissions and received over 70, which were very detailed. We held two full days of hearings. It was extraordinarily complex and very interesting. Everybody welcomed the value of those hearings. We produced a 700 page report on this issue.

At that time this was called the mental capacity Bill. Then there was talk of calling it the legal capacity Bill. I am delighted to see that it is called the Assisted Decision-Making (Capacity) Bill because the Title of a Bill sets its tone. I congratulate the Minister on moving in that direction. The Bill is designed for people who have difficulty making a decision, for all kinds of reasons, intellectual disability, mental health issues, brain injury, Alzheimer's disease and so on. Some of these conditions are progressive and as they progress the legislation has to keep in line with that progression because at certain stages people need assisted decision-making, then co-decision making and at the end decisions are made for people. At other times people may have some form of remission, especially if theirs is a mental health issue and can come in and out of the need for assistance of some sort. It is a very complex area indeed.

I would like to see an easy-to-read guide to this legislation because the people whom it is supposed to help might have difficulty in understanding what has been produced in the Bill and in the explanatory memorandum. I ask the Minister of State to consider whether she can cause to be produced an easy-to-read document that those whom this Bill is intended to help could better understand. That is important and has been called for.

Central to this Bill is the will and preference of people to make a decision. That must remain central at all times, even when a person can no longer express him or herself. Years ago, when a son of mine was seven, he did not want to go on a Sunday drive. He said "Dad, when you are old, I will take you to places you do not want to go". We have to put ourselves in that position. I thought about it and after a while I was a bit horrified because I thought that might actually be true. There are older people in nursing homes and other places and this Bill really needs to consider them. Their will and preferences must remain central, even when they can no longer express themselves. We may need to consider their previous decisions and other such matters.

I believe this Bill goes a long way towards that.

My speaking time is limited but, as I spent two full days debating this earlier, I do not need to take too much time here. Nonetheless, I want to make one further point. With regard to the office of the public guardian, the word "guardian" is paternalistic and I ask the Minister to reconsider this and to come up with a different title, in particular given the Title of the Bill changed from the Mental Capacity Bill to the Assisted Decision-Making Bill. The word "guardian" grates with me a little as it is somewhat Victorian and paternalistic. It refers to somebody doing something for a person whereas the whole tone of the Bill is assisting people to make decisions on a continuum as matters move along. I will conclude as I would like to hear what the Minister of State has to say.

I call the Minister of State. If she does not have enough time in the ten minutes remaining, she can continue tomorrow. It is up to her.

It has been a wide-ranging discussion. As Deputy Stanton said, few other Bills have been so widely consulted on, not just in terms of the politics of this, but in terms of academic input, international input and public consultation. It has been an incredible experience. I am sure the officials in the Department will vouch for the fact the Bill as presented today is not the same Bill we started out with, and, indeed, I am sure it will not be the same Bill we end up with. That is hugely important. In many cases, we come in with legislation and we do not have that type of flexibility because it is usually about finances or pressures from other people or other legislation we have to complete. On this Bill, we have set out to take people's views on board, to listen to their concerns and, where at all possible, to ensure those concerns are reflected in the finished Bill.

We have had a useful discussion. Deputy Boyd Barrett's contribution was interesting from the point of view of personal experience of the people he interacts with. That is what it is really about. It is about people in an everyday setting who find themselves in a position where they are not able to make decisions for themselves. When talking about issues like this, I often say that what it is really about is the right to make the wrong decision. We all make wrong decisions, and while people may come along later and say, "I made a bit of a crock of that", they had the right to do it. That is that this Bill is about. Hopefully, with assistance and input from other trusted people, it will be the right decision. However, those of us who rear children know that no matter what the advice is, from time to time, it is still the wrong decision.

I would like to respond to some of the points made. If I do not respond to all, Deputies should not take it that we did not listen, because we did, and we will be listening even more when it comes to Committee Stage.

We will produce a plain English version of the Bill. When we do, we will run it by the organisations which advocate on behalf of people with disabilities and which have an expertise in this area. As I said in my opening statement, legal capacity is presumed in the Bill. Everyone is entitled to equal recognition before the law. However, I realise that this message may not be clear enough in the published Bill and we are seeking to make this clearer in the final legislation.

I note the comments on informal decision-making, and we will take another look at this aspect. The provisions on informal decision-making were never intended to be a charter to undermine the Bill. They were simply designed to protect individuals, especially health care workers and carers, against liability if they made decisions on a person's welfare in good faith. The intention was that these workers could act for a person's benefit without fearing that they might be sued. However, I see from the feedback we have received that the provisions are too loose and they need to be tightened to reflect more clearly what we are seeking to achieve. I believe we are all seeking to eventually end up in the one space.

We recognise that vulnerable people are at higher risk of exploitation and that safeguards are required. With regard to the office of the public guardian, we are not hung up on the title because titles are one thing we are not hung up on in this legislation. We will look at the name, as Deputy Stanton and others suggest. The office of the public guardian will supervise those tasked with supporting others and will act on complaints. Similarly, those appointed as co-decision makers and decision-making representatives will be accountable to the court for the performance of their duties. Nevertheless, we are listening carefully to the comments that we are receiving about improving safeguards and are carefully considering what we need to do to improve these provisions. Our aim is to have sufficiently robust safeguards to prevent the exploitation of vulnerable individuals, which we would all prefer.

The need to prevent conflicts of interest was also raised. I agree this is an important issue. Conflicts of interest have the potential to do harm to a person with capacity difficulties. This is why we have prevented staff of nursing homes or residential facilities from handling the property and affairs of a vulnerable person. We will also consider if the Bill needs to be strengthened further as regards the prevention of conflicts of interest.

The issue of establishing a separate legal aid scheme was raised in the debate. As I said, we are making it easier for people to access legal aid and removing the merits test. The likelihood of success, which was one of the issues raised, will not be a factor in deciding whether to grant legal aid. We will also examine how court-related processes can be done in a way that minimises court time and expense for the person with capacity difficulties or for their family. However, the number of people who may potentially use these options is such that we do not have the resources to give free legal aid to all of those affected. Many of those who will benefit from the legislation have resources and assets. It would be unfair if those people received free legal aid and prevented others on low incomes from getting the assistance they need.

The issue of deprivation of liberty was raised. I believe, and have always believed, that the issue of depriving a person of their liberty is the most profound and significant thing one can do in any society. The Bill provides safeguards to protect those who lack capacity and who have a mental disorder from being arbitrarily deprived of liberty. We have sought to ensure there is no conflict between this Bill and the Mental Health Act 2001. Of course, as Deputies are aware, the review of the Mental Health Act is currently under way. We will have to revisit the relevant sections of this Bill once that review is complete.

In response to Deputy Ó Caoláin, who made a particular point of this, I cannot say what will come out of the review of the Mental Health Act. I have deliberately kept out of the process. I appointed the group, met them on one occasion and gave them the criteria under which I wanted them to act, but I will not interfere in that process. I will have something to say about it as soon as I see what the group's recommendations are, and whether I agree or disagree with them or think they have gone far enough. However, it is important the process remains clean and uninhibited.

The role of advocacy has also been raised. I agree there is an important role for advocates in supporting people with capacity difficulties and in ensuring their rights are respected. We are considering how the issue of advocacy can be addressed most effectively in the Bill.

The Bill is not cast in stone - we started off with that point in my opening speech and we will finish up with it. We are open to the views of Deputies and of stakeholders as to how the Bill can be improved. What we want to achieve is a legal architecture that promotes respect for the rights and autonomy of people with capacity difficulties in line with the UN Convention on the Rights of Persons with Disabilities. I keep making the point that if someone came to me looking for advice on the bond markets or on what shares to buy, I would readily admit I have no idea.

Ring Deputy Shane Ross.

He was writing for long enough and he knew nothing about it either.

However, if I was asked about other issues, I would have considerable knowledge.

We must look at people with limited capacity in that respect. None of us, and I exclude Deputy Ross from this, is the holder of all knowledge. We must look at it in terms of some of us having expertise in one area and very little in others. I commend the Bill for second reading.

Question put and agreed to.