'Proud, historic and emotional' day as the Capacity Bill passes through Seanad

Full Review of Seanad Report & Final Stage

The Seanad was awash with emotion yesterday evening as it signed off on the Assisted Decision-Making Bill. Senator Mary Moran described it as “a proud and historic day. It is also an emotional day for all the people involved”, Senator Trevor O’Clochartaigh said “today is a day to be grateful that this legislation is going to be put through. It will make the lives of the service users, their families and all those in need of these services better in future. Who knows whether we could be in that category ourselves at some stage”. Senator Jillian Van Turnhout said “we have highlighted the importance of choice, control and consent...this legislation is not just about legal changes but a huge cultural shift. We need to sing out and ensure that this cultural shift happens”  

Minister Kathleen Lynch who has been at the forefront of this legislation said “this is a very historic day for all of us the central elements of the Bill are respect, dignity and kindness.”

There have been almost a thousand amendments in the Bill to date with significant opportunities for organisations and individuals to feed into the process. Minister Lynch thanks everyone who had contributed and said that “there have been two years of continuous consultation” on the Bill.

Senator Mary Moran said “I wish to thank Inclusion Ireland and the self-advocacy group in Inclusion Ireland” and Senator Moran said that she saw a video made by one of the advocates, Adrian “and we know what this Bill means to them. It is a great day for us”.

Decision Support Service Moves to the Mental Health Commission 

The big amendment was the removal of the Decision Support Service from the Court Service to the Mental Health Commission. Inclusion Ireland had repeatedly called for the new system to operate independently from the Courts Service and in fact had proposed a system like this as far back as 2008.

Last night in the Seanad, Senator Trevor Ó Clochartaigh stated that Inclusion Ireland, had raised this with him as a particular issue and said “the thought of placing the decision support service within the Courts Service was not one with which they were comfortable... (they) have asked for an office with an independent function ... this would afford independence, transparency and an opportunity for a fresh start”.

In explanation of the decision, Minister Lynch said that while “the ideal would be a stand-alone agency”, the Mental Health Commission “has experience of providing information and of preparing codes of practice.  It has experience of setting standards, performing regulatory functions and undertaking investigations. It approaches its current functions from a human rights-based perspective, which is what will be important for the new body. It has the necessary skills mix that is needed by the new body (the DSS).

While the move away from the courts is a positive step, Inclusion Ireland is mindful that the Decision Support Service must be independent and distinct from the Mental Health Commission. The skill set of the MHC is much more aligned with what is required however and we will be encouraging the Minister and subsequent Ministers to establish an independently functioning Decision Support Service as soon as is feasible.

Applications for Reviewing Wardship

At Committee Stage Senator Trevor O’Clochartaigh raised Inclusion Ireland's proposal relating to people who could apply for a review of Wardship. At the moment the Bill allows the Ward themselves or a person with “sufficient interest or expertise” to apply.

Inclusion Ireland raised the concern that families had raised that relative or friend who has had such personal contact should be introduced as a category of person, as appears elsewhere in the Bill.

Although Minister Lynch did not accept Senator O’Clochartaigh’s amendment  she did state that legal advice was being sought with a view to introducing the change. Inclusion Ireland welcomes that that this did in fact happen and that an amendment allowing for an application for a review of a ward’s case could be made by a relative or friend of the ward who has had such personal contact with the ward that a relationship of trust exists between them.

This is an important amendment which means that a person themselves can apply for a review but that where this isn’t feasible a person of trust can in their stead.

Legal Aid

Senator Mary Moran had raised the issue of legal aid for families. Minister Lynch committed to putting forward provision for legal aid at Report stage. and introduced an important amendment allowing for an automatic qualification for legal-aid where a person is having his or her capacity assessed.

This is particularly important as this area can be legally complex and access to a solicitor is essential. Inclusion Ireland had called for a non-means tested legal aid system and will continue to do so as many people who are Wards of Court may have means but are not wealthy and often have no other income. For many people their means are intended for a lifetime of care or support.

The Seanad passed the Assisted Decision-Making Bill at the end of Report Stage and all that remains is for the Dail to approve the Seanad amendments and the President to sign the Bill into an Act. The Act is expected to commence on the second half of 2016. This represents a delay in commencement as a result of the decision to move the Decision Support Service to the Mental Health Commission.  


Further information 

Seanad Committee Stage (December 2015)

Seanad Second Stage (November 2015)

Report & Final Stages in Dail (October 2015)

Assisted Decision-Making (Capacity) Bill - Fact Sheet (October 2015)

Inclusion Ireland's Press Statements on the Capacity Bill

Training & Development Officer Sarah Lennon Blog Post

More about the Capacity