Every person, regardless cognitive ability, has the right to an opinion on the decisions that need to be taken in his or her life- O’Reilly TD

I commend the Minister, Deputy Shatter, and the Minister of State, Deputy Lynch, for 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The Lunacy Regulation Act 1871, which is outdated and constrictive legislation, was blocking us from being able to ratify the convention due to its confliction with Article 12 and before we could ratify it we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.
s 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.

Senator Joe O'Reilly representing Cavan & Monaghan 2010. | An ExSite website