21 February 2007
Bill entitled an Act to reform the law concerning mental capacity, to provide for informal decision-making on behalf of adult persons who lack capacity in certain circumstances, to establish a Guardianship Board which may appoint Personal Guardians to deal with the property, financial matters and welfare of adult persons who lack capacity, to confer jurisdiction on the High Court in certain matters, to provide for the establishment of the office of Public Guardian and to set out the functions and powers of the Public Guardian, to amend and repeal various enactments for this purpose, and for related matters.
Dr. Henry: I move: "That Second Stage be taken now."
Question put and agreed to.
Mental Capacity and Guardianship Bill 2007: Second Stage
Dr. Henry: I move: "That the Bill be now read a Second Time."
In the recent past, legislation has been brought before the Houses of the Oireachtas to repeal statutes which are no longer relevant to life in Ireland. This was a worthy exercise. I have brought forward this Bill in the hope it will lead to the repeal of the Lunacy Regulation (Ireland) Act 1871 and its replacement by this proposed legislation and to the repeal of the Marriage of Lunatics Act 1811.
The Bill addresses the needs and rights of older and vulnerable people. The Bill is based totally on the draft scheme for a Bill on mental capacity and guardianship published by the Law Reform Commission in 2006. I recognise the presence of the permanent law reform commissioner, Ms Patricia Rickard-Clarke in the Gallery. I wish to recognise the work the commission did on the law affecting older people with physical, mental and learning disabilities and the law as it affects older people. The commission published a consultation paper on the law and the elderly in 2003 and the many responses to it were taken into account in its report on vulnerable adults and the law in which the draft Bill to which I referred is an appendix.
In May 2005 the commission published its consultation paper, Vulnerable Adults and the Law: Capacity. While the focus of the consultation paper on the law and the elderly was to make recommendations concerning older people, the commission acknowledged these recommendations were also relevant to other adults with limited decision-making abilities and to adults who otherwise needed protection. There is no universally accepted definition of intellectual disability but one definition which is quoted in the report is the presence of a significantly reduced ability to understand new and complex information and to learn new skills - impaired intelligence - with a reduced ability to cope independently - impaired social functioning. The spectrum of intellectual disability is wide and extends from people with mild learning difficulties to those with profound difficulties. Some adults with intellectual disability lead independent lives within the community while others need intensive care and support. Decision making capacity may vary but the opportunity should be given to them to make or participate in making, with help, decisions relevant to their lives. That is the purpose of the Bill.
People with mental illness such as depression, bipolar disorder and schizophrenia may temporarily need help. When ill they make decisions they would not make when well. Those with acquired brain injury, due to trauma, stroke and brain surgery, or with rarer conditions, such as locked-in syndrome, were also considered by the commission. Under the current law those over 18 years of age are considered to have capacity. If it is shown that a person lacks capacity the current law sometimes has the effect of completely changing the person's status, from a person with capacity to a person without capacity. The example given by the commission is the wards of court system that, the commission suggests, should be replaced by a guardianship system.
Before addressing the content of the Bill I wish to refer to the issue of capacity. Paragraph 1.61 of the report states:
Current Irish law begins with a presumption of capacity. This maybe displaced by evidence establishing that a person lacks capacity. At present, however, there is no generally applicable definition of capacity at common law or in statute.
The commission examined three models of capacity. The outcome approach is used by many doctors and means that if one agrees with the doctor's decisions one has capacity and if not, the doctor advises that capacity is absent. The commission concluded that the outcome approach penalises individuality and demands conformity at the expense of personal autonomy. In other words, it is important not to fight with one's doctor.
The status approach was also dismissed by the commission because it was considered to be based on an across the board assessment of a person's capacity rather than the person's capacity in respect of the particular decision. An example of this is the denial of capacity to a person in a long-stay psychiatric ward even when the person was well.
The commission decided the functional approach was best, considering capacity on an issue specific basis. An all or nothing approach should not be adopted. This commonsense approach appealed to me and for this reason I ask the Minister of State to consider it.
Part 1 is self-explanatory, concerning title, interpretation and expenses. Section 4, regarding the guiding principles of the Bill, exemplifies the commonsense approach. It states:
Every person concerned in the implementation of this Act or in making any decision or Order under this Act shall have regard to the following principles:
(a) No intervention is to take place unless it is necessary having regard to the needs and individual circumstances of the person including whether the person is likely to increase or regain capacity;
(b) Any intervention must be the method of achieving the purpose of the intervention which is least restrictive of the person's freedom;
(c) Account must be taken of the person's past and present wishes where they are ascertainable;
(d) Account must be taken of the views of the person's relatives, primary carer, the person with whom he or she resides, any person named as someone who should be consulted and any other person with an interest in the welfare of the person or the proposed decision where these views have been made known to the person responsible;
(e) Due regard shall be given to the need to respect the right of the person to dignity, bodily integrity, privacy and autonomy.
Section 5 is self-explanatory and concerns the age of majority and the repeal of the 1871 Act.
Part 2 deals with capacity and the functional approach. Capacity, rather than incapacity, is the term deliberately used. Sections 8(3) and 8(4) concern the carers working to do their best for the person. They should not have liability for expenses. Section 9 deals with the situation where informal decision making will no longer do and the guardianship board needs to be set up and a personal guardian appointed. Section 10 covers everyday expenses incurred for a person's welfare. Section 11 deals with wills and how these may have to be changed in exceptional circumstances. Section 12 concerns consent and capacity of persons in specific circumstances such as in the context of the common law, capacity and consent to marriage, consent to divorce, consent to adoption, and voting at an election for any public office or at a referendum.
Part 3 sets up the guardianship board, deals with the appointment of members and describes the functions and related powers of the board and part 4 does likewise for personal guardians. Part 5 follows commission recommendations that a public guardian, with a supervisory role in respect of personal guardians, should be appointed by the guardianship board. It also implements the recommendation that the public guardian should have an educative role in raising awareness of capacity issues among the general public. Codes of practice are explained.
The commission recommended a sixth part to the Bill, which is not included. This would incorporate specific amendments to the Powers of Attorney Act 1996 concerning enduring powers of attorney. These are described in the report as an excellent way to preserve the autonomy of the decision maker in setting out his or her choice of an alternative decision maker in the event of loss of capacity. The commission recommends that the primary legislative regime governing enduring powers of attorney be included in this Bill on mental capacity. This area needs further discussion.
I hope the Minister of State accepts this commonsense Bill. The status of older people and those with disabilities is considered more carefully now than it was in decades past. They are entitled to have as much control over their lives as is possible and this is the view of society at present.
Mr. Quinn: I second the motion and welcome the concept of the Bill. It will update the legislation on incapacity. I appreciate Senator Henry asking me to second this motion because I had to study the subject. This opened my eyes to the work undertaken by the Law Reform Commission, which initiated many of the ideas in the Bill. I welcome Ms Patricia T. Rickard-Clarke, who is present in the Distinguished Visitors' Gallery.
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