Mental Capacity and Guardianship Bill 2007 - Second Stage - 21st February 2007

Mental Capacity and Guardianship Bill 2007- Second Stage. - 21st February 2007
Mr. Norris: I agree with Senator Glynn on most things but I do not think Senator Henry will return to the Seanad because she does not intend to stand for election.
Mr. Glynn: She will have a watching brief.
Mr. Norris: We will be diminished by her absence. We have not always seen eye to eye but she has offered something important to this House which will be missed. I refer not only to her care and concern for vulnerable people, which she has displayed in producing this Bill, but also to her medical expertise, which will be lacking on the backbenches. One can never tell, however, who will pop up at the last minute in an election but Senator Henry’s decision not to stand is regrettable and I commend her on her initiative in presenting this Bill, the outline of which was drawn by the Law Reform Commission. That is not to be regretted, Senator Henry should be complimented on it because it shows a positive relationship between the Law Reform Commission and us as legislators. This is exactly what the Seanad should be about and it is marvellous that the Minister has indicated that the essential principles of the Bill have been accepted. We are generating more legislation than ever on this side of the House. I have a Bill on the Order Paper, although obviously it will not be taken and a similar Bill is being discussed in the other House tonight, but if I get back, I certainly will push it like blazes.
I concur with my friend Senator Ryan who, rather engagingly, confessed that like everyone else there are connections with wards of court in his family. My family tree is liberally festooned with imbeciles, idiots, lunatics and wards of court. I rather relished that old fashioned terminology in some cases because I remember how embarrassing it was for the family when, for example, I discovered a legal document belonging to an ancient relative of mine called Anthony Gale. My aunt tried to possess herself of it and destroy it because it noted the “said Anthony Gale, being a lunatic and declared ward of court”. I rejoiced in that, thinking it to be absolutely charming.
I had another relative, a Hungarian aunt by marriage whose husband was tragically killed in a motoring accident which left her traumatised. She became very difficult and was made a ward of court. That was possibly in her best interest but she was someone of such strong personality and her mental condition was understandable because she came from an old Hungarian family that was thrown all over the place because of the collapse of the monarchy and the advent of communism. Communism drove her mad and she saw everything as a communist plot. I arranged for her to have a cataract operation. She agreed to have it and I pulled all sorts of strings to move her up the queue and at the door of the operating theatre, she said, “No, I will not do this, it is a communist plot.” It obviously was not but she had convinced herself that the commies had infiltrated St. Vincent’s Hospital and were going to take out her eyes. She was, however, well capable of making all kinds of other decisions. That is why I like the idea in the Bill of a gradation of capacity.
Being serious, for people today, whatever about the 18th century, it is obnoxious to throw around phrases such as lunatics, idiots, imbeciles, morons and so on. The terms have become so outdated that they have become ludicrous and do not reflect the human situation.
The Law Reform Commission report usefully divides the situation of vulnerable adults into two sections, with the first being people who by virtue of age alone are rendered deficient in terms of mental capacity. That will happen increasingly because the population is ageing and life expectancy is increasing all the time, as is the incidence of Alzheimer’s disease, which is generally associated with age. There is the other perhaps even more tragic circumstance where young, fit people, either through car accidents or sports injuries are rendered with some degree of intellectual disability. That is certainly a great difficulty and that is why it is important the present provisions be replaced by the guardianship system and I compliment Senator Henry on this.
I like the idea of a functional approach, that people should be judged on their capacity, with an individually tailored approach. We will not just say that a person has Alzheimer’s and therefore nothing can be done, we will assess his or her capacity and respect it.
If the Minister is introducing legislation, he might consider something that is not in Senator Henry’s Bill - regulation by IFSRA of these equity release schemes. I have been bellyaching about the packages available and the way they are advertised on the radio. It is heartless. They suggest at the age of 90 a person can flog off half of his or her house and skip off to Bermuda and have a bloody good time with lots of cocktails.
Ms O’Rourke: It sounds good.
Mr. Norris: It sounds good but it is not, life is not like that. Sometimes people apply for these without realising all the implications. Someone mentioned that there was a difficulty with a ward of court who needed alterations to her house. That is the same as taking up one of these equity release schemes. It gives a bank equity and its permission is needed to install a chair lift or similar facility. The bank may refuse because it would reduce the value of the house. People must be protected from that, particularly some older people who are easily led and a bit sentimental.
The Bill covers the question of consent. As the law stands, dentists, doctors and surgeons get consent forms signed by patients but they have no legal force. Technically, a dentist or a doctor who operates on someone of diminished capacity could in law be held to be committing an assault because those consent forms have no validity. As I understand it, this situation will be rectified by the current Bill, another good reason for commending it to the House.
The Minister indicated that although he will not take the Bill en bloc, it will remain on the Order Paper. Nothing will be done before the election and, alas, Senator Henry will not be here to propose the legislation after the election but if no one else will, I will push it, as will Senator O’Toole, who seconded it.
Mr. Ryan: So Senator Norris will definitely be here?
Mr. Norris: No one can say for definite that we will be here. I remember very well what happened to you, honey, when you came along with a poster stating, “When shall we three meet again?” and you met your fate. I will not tempt providence.
Ms O’Rourke: The Senator is so gleeful.
Mr. Norris: I am not a bit gleeful. To adapt Oscar Wilde, and I am sure he thought of saying this if he did not say it, I have never understand the idea of tempting providence because it is older than the whole bloody lot of us put together and should be able to resist temptation. I will not bank on providence being able to resist temptation in my case because, over the years, I have been a deliciously naughty boy and providence might decide it is about time I got a smack so I refuse to tempt providence in the way Senator Ryan so unwisely did. I wish him well and hope that on this occasion he survives.
This is a positive evening because we have been ad idem on the need for the Bill and the Government in succeeding years will introduce legislation along these lines. It now has the endorsement of the House and Senators Henry and O’Toole have done a good day’s work for Seanad Éireann.