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Dáil Éireann debate -
Thursday, 2 Jun 2022

Vol. 1023 No. 3

Assisted Decision-Making (Capacity) (Amendment) Bill 2022: Second Stage (Resumed)

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

Deputy Pringle was in possession. I am pleased to say he has 17 minutes remaining.

I thank the Ceann Comhairle for the opportunity to contribute again on this. I wish to follow on from what I was saying yesterday just before the debate was adjourned. I was referring to why this Bill is now so urgently required and the necessity that has been put on to rush all Stages. This needs to be considered much more closely. In this House, we should not just bend over and bow down to this. Deputy Connolly, who spoke yesterday, outlined very well the current situation and the note we were given on the case at the briefing held by the Minister. The note is worrying. It shows how officialdom and the Department consider this matter. In red letters across the top, it states Deputies are reminded that the subject of legal cases is not suitable for discussion on the floor of the Houses. If so, we should not be legislating in a rush like this to meet needs associated with legal cases. There was a dispute at the briefing on whether this was the reason for rushing the Bill. Apparently, some of the civil society bodies were ready to deal with this, and that is the way it should be dealt with.

We certainly need to consider that. I was going to argue that what has happened will not happen again but I do not believe it because, in reality, we seem to respond at a very late stage to anything that needs to happen rather than being proactive. This legislation was around since 2013 and the need to address the relevant matter arose in 2015. Here we are in 2022 and it is being addressed only now. That is a problem.

I thank the organisations that have done trojan work over the past three days to ensure this legislation would be properly scrutinised and that Deputies speaking on it would be properly informed of its implications. In particular, I thank the NUIG Centre for Disability Law and Policy, Mental Health Reform, Disabled Women Ireland and Nem Kearns for engaging so helpfully with my office regarding this. Their insight is invaluable. It is such a shame that the Government has not properly engaged with such groups and individuals to gain this insight. I have been truly shocked by the Government's complete lack of engagement.

By not consulting with the disability community and disabled persons organisations, the Government has completely failed to meet obligations under the UN Convention on the Rights of Persons with Disabilities, UNCRPD. There was no public consultation on which amendments were required to the Assisted Decision-Making (Capacity) Act 2015 and the consultation on the heads of the Bill was rushed and inaccessible to many disabled people. I know the Department consulted disabled people on the original Bill in 2013 but this cannot be considered sufficient consultation for an amendment Bill nine years later. I believe this lack of a more recent consultation breaches the UNCRPD. I am also shocked at the lack of consultation with the Joint Committee on Disability Matters and the Sub-Committee on Mental Health, given neither committee was given the opportunity to scrutinise this Bill.

This is worrying for the Houses of the Oireachtas. People might find this strange but we are actually supposed to be separate from the Government, whereas, in practice, that is not what happens. The Houses of the Oireachtas have something to do here as well in light of how they are being treated by the Government in this situation. It happens regularly and I am not suggesting it is just on this particular legislation. There is an overall problem that the Government sees the Houses of the Oireachtas as a kind of vassal of the Government rather than as something independent of Government. That is something in the culture of Government that we have to address. I am not exactly sure how it will be done but it might be possible.

This legislation affects disabled people’s rights and the Joint Committee on Disability Matters should have had oversight of its interaction with the State’s obligations under the UNCRPD. The Joint Committee on Children, Equality, Disability, Integration and Youth, in its pre-legislative scrutiny of this Bill, first and foremost said that it was not given enough time to properly scrutinise it and then recommended that both of these committees should be consulted to see how best to ensure accessible and inclusive processes of consultation as per our obligations under Article 4.3 of the UNCRPD. I have no doubt that if these committees were given adequate time to scrutinise the Bill, the many issues we are now coming across would have been better addressed.

Where this Bill falls short is the fact that it does not address major flaws in the original Act, such as the failure to extend advance healthcare directives fully to those under the Mental Health Act. We need to ensure that legally binding advance healthcare directives for all will be provided and that no one will be treated differently because, otherwise, we are only serving to enshrine discrimination based on disability or perceived disability and we are not respecting the UNCRPD.

The amendment Bill has also not removed the functional test of mental capacity, which has been deemed a human rights violation by the UN Committee on the Rights of Persons with Disabilities. We also need to address the fees charged for searching the register of decision-making agreements. It seems there could potentially be an astronomical cost to the HSE to get access to decision-making agreements and the same would be true for advocacy organisations. This is another area that we need to look at and address. Sadly, the HSE would use the issue of costs as a barrier to actually providing service or looking to help people.

A huge area of concern for me is the fact this amendment Bill does not take the opportunity to remove section 85(6) from the original Bill, which would remove the phrase “deleterious effect on the unborn”. This language is vague and unhelpful and undermines all refusals of care and treatment based on consent. It ultimately allows for pregnant people’s wishes to be ignored. This section was included in the original Bill to ensure the Act would meet the constitutional obligation to protect the right to life of the unborn. However, following the repeal of the eighth amendment, this section should now be deleted in its entirety. I know the Minister said he is looking at tabling an amendment to address this but I do not believe that is good enough. One would have to think that in the preparation of this legislation, that would have been seen and addressed, given a constitutional referendum took place in the last couple of years. We should not have to ask for this as it should have been considered in the first place. Women are sick of constantly having to ask for their rights to be realised and respected. Pregnant people should have the same right to refuse care as every other person. We need to end the continuous undermining of pregnant people’s decision-making in our laws now.

I also have concerns regarding the delegation of powers to the decision support service, DSS. This Bill will allow for the transfer of further powers to the DSS but there is no obligation on it to meaningfully consult with disabled people, older people and people with experience of mental health services in exercising these powers. The Bill would also allow the DSS to share information with other bodies and allow investigators under the DSS to access private data, such as medical and financial records, without an individual’s consent and without court oversight, which completely infringes on a disabled person's right to privacy.

Another thing that this Bill allows is for cases to be heard in public without the consent of the person at the centre of the case, which again infringes on a disabled person’s right to privacy under Article 22 of the UNCRPD.

I welcome the end to wardship in Ireland. However, I would like to support the committee’s pre-legislative scrutiny recommendation to shorten the period provided for all wards to transition out of wardship. I would also like further clarification on exactly how this transition will happen.

I support the committee recommendation that provisions of the 2015 Act should be extended to 16 and 17-year-olds and that arrangements should be made for those in prison and other institutions to access the Bill’s provisions. As well as this, I believe the provision of legal aid should be extended to as many parts of the Act as possible.

An area of this Bill that needs serious reconsideration is the decision to continue excluding many disabled people from jury service. This is incredibly discriminatory and it is very disappointing that the opportunity to amend this was not taken up.

It is also disappointing that the Bill does not contain an explicit prohibition on all physical and chemical restraint. I know many disabled persons' organisations have been in contact with the Minister in this regard.

I would be very grateful if the Minister could answer the following two questions which I have on these issues. First, the language in section 82 of the Act contains a typographical error and continues to maintain a discriminatory approach with respect to people with intellectual disabilities in particular serving as members of juries. Will the Minister commit to bringing forward an amendment on Committee Stage to rectify this situation, thereby ensuring that no disabled person would be automatically ineligible for jury service on the basis of an assessment of their capacity without first ensuring that support and reasonable accommodation, which could enable the person to serve as a juror, has been offered? Second, section 35 of the Bill amends section 44 of the 2015 Act by removing all references to restraint, but it needs to go further to ensure that no one is unlawfully restrained under this Act. Will the Minister commit to introducing explicit prohibition on restraint, for example, by including the line: “Nothing in this Act authorises any intervenor to consent to the use of physical or chemical restraint on a relevant person”?

There is no doubt that further clarification is needed in many areas of this Bill. I hope the Minister will clarify this in his response and I also hope that he takes into consideration the points I and my colleagues have made. Above all else, I ask the Minister to engage fully and properly with disabled persons' organisations and other organisations on the ground and that he would prioritise this over the rushing through of legislation. We are all aware that this legislation is being rushed through due to a recent constitutional challenge. I strongly condemn the rushing through of such important legislation just to protect against a judgment that has not yet been decided and might not be decided for a number of months.

Some of the disability groups were watching the debate yesterday and they have some questions that the Minister might address in his summing up or at a later stage. They ask which stakeholder groups the Minister will meet in regard to the Bill. They are particularly interested in knowing which disabled persons' organisations and other representative groups with lived experience will be included in these conversations. It has also been suggested that this Bill is necessary for Ireland to ratify the optional protocol and the Minister might confirm whether that is definitely the case. Will the Government commit to adding specific reference to the UNCRPD to this Bill? We have been assured that people falling within the scope of the Mental Health Act will have parity of rights when it comes to advance healthcare directives. Can the Minister confirm what this parity will look like? Will an amendment to this Act be introduced to ensure people with mental health conditions can implement advance healthcare directives under this Act or will the Mental Health Act have to be amended to allow for the advance healthcare directives?

Deputy Pringle has neatly avoided a Peppa Pig moment. Congratulations on that.

Before I call the Minister to respond, Deputy Pringle raises a valid point about the demarcation between the role of Government and the role of the Dáil and Parliament. It was my understanding there was pretty extensive pre-legislative scrutiny on the heads of this Bill. If there was not, I suppose we cannot blame the Government for that and we would have to ask the relevant committee why it did not do its job, if that is the case.

We must not undermine the process in which we are involved. The pre-legislative scrutiny and the debates on Second, Committee, Report and Final Stages are all important and allow us all, if the parliamentary process works properly, and I hope it does, to impress on the Minister, whoever the Minister might be, the merit of amendments and suggested changes. Most Ministers, including Deputy O'Gorman, have shown themselves willing to listen to Members over the period they have been in office. I am sure the Minister wishes to reply to the debate.

I thank all the Deputies, in particular those who made their significant contributions yesterday. I thank Minister of State, Deputy Rabbitte, for leading off on Second Stage. During our discussions yesterday Deputies spoke to the problems of wardship, the extremely outdated nature of the system, the fact that it has been with us for more than 100 years. It is a system dating from the 1800s. Deputies spoke to the very real difficulties their constituents have experienced when they have been confined by the situation on wardship. Deputies Boyd Barrett, Ó Cuív and Healy-Rae all spoke about individual circumstances. There is that recognition across the House that wardship is a draconian institution which entirely robs people who have been assigned to wardship of any recognition of their individual capacity. They are denied any sort of personal agency. We looked for the figures from the Courts Service. Just over 2,100 people are in wardship at the moment, according to Courts Service figures. Somewhere between 200 and 300 are added each year.

Many Deputies spoke to the frustration at the fact that the replacement of wardship should have happened already. There is an Act allowing for the ending of wardship. We passed the Assisted Decision-Making (Capacity) Act in 2015 but it has not been commenced. We have a decision support service, DSS, ready to provide the graduated levels of supports for persons who have some impairment to their capacity to enable them as much as possible to make their decisions.

A Deputy spoke to concerns about the DSS but it might be useful to recall the guiding principles of the existing 2015 Act and what they say about central issues on capacity. What I am about to read out is not in operation right now. It has not been commenced. Section 8 is the section on the guiding principles. Section 8(2) states, "It shall be presumed that a relevant person... has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Act." We are replacing wardship with a presumption of capacity if this is commenced. Section 8(3) states, "A relevant person who falls within paragraph (a) of the definition of “relevant person”... shall not be considered as unable to make a decision in respect of the matter concerned unless all practicable steps have been taken, without success, to help him or her to do so."

The 2015 Act, which we are seeking to commence by passing this amending legislation, represents that complete reversal of the wardship presumption and the complete abolition of the concept of wardship. That is something I think we all agree is positive.

I will not be able to address every issue but I will do my best to address some of the issues raised yesterday. Deputies Ward, Connolly and Pringle raised the issue of the functional capacity test and the argument that it is not UNCRPD compliant. The Government's position is that is not the case, that the functional capacity test is UNCRPD compliant. It requires a presumption of capacity and it replaces that system of wardship that is not, as we all recognise, compliant with article 12 of the UNCRPD. However, the functional capacity test replaces that with a rights-based approach that meets people as they are at a specific point in time. It privileges, protects and enforces a requirement to identify, respect and act in accordance with a person's will and preference. We have achieved that through the functional capacity test.

A number of comments were made about the draft codes that have been put forward by the DSS. It is important to emphasise they are just that, they are just draft codes at the moment. They are out for consultation. They will not become official codes until they are given approval by myself, as Minister. That process of deciding what does or does not go into them is not finished at this stage.

A number of points were made about the capacity assessment. A Deputy said that large numbers of unqualified persons could conduct a capacity assessment. That is not correct. This Bill does not permit that. Only registered medical professionals or other classes of professionals that will be prescribed by regulation from the legislation can conduct a capacity assessment and only the court or where it is set out in the Act, the director of the DSS, can give legal effect to a decision support arrangement. However, where guidance can emerge from the DSS is on how other sectors of society might respond to a person whose capacity in respect of a decision in question in a specific circumstance. This should not be confused or conflated with a formal capacity test. It is a different thing. It is not a formal capacity test. It is important the DSS gives guidance on how other broader sectors of society should give meaningful effect to that principle of capacity. The guidelines are there to empower this principle of capacity, not to look to restrict this in any way.

Deputy Pringle raised the point of the implications of the referendum on the repeal of the eighth amendment. Deputies Connolly and Cairns raised that as well. To be clear, the issue in terms of advanced healthcare directives in pregnancy will be addressed on Committee Stage. I want to make it clear that is going to be done.

The issue of legal aid will be addressed on Committee Stage. The Minister, Deputy McEntee, has brought forward a review of legal aid and the issue of including the provisions of this Act within that is specifically listed in that review. However, we will be putting that in place by way of a Committee Stage amendment. Hopefully, this will give clarity on that particular point.

A number of Deputies said this is being rushed. I accept that we have set a tight timeline for passing this legislation. However, we are not rushing it. We have not combined the taking of Stages. There will be a full Second, Committee, Report and Final Stages in each House. It will be done on the basis where meaningful amendments can be tabled during that period of time. There is a recess next week which gives significant time for amendments to be tabled on Committee Stage. I do not accept it is being rushed. I recognise it is a tight timeframe but I do not agree that it is being rushed. I have indicated that I will be using Committee Stage and I will be happy to engage with Deputies in terms of seeking to address some of the issues they have raised.

Whenever I have addressed a parliamentary question on bringing in this legislation to allow for the abolition of wardship, and I have answered a significant number of them, I have always indicated that we were looking to bring in this in June. I do not think it should be a shock to the system that this is coming at this point. I accept the point in terms of the publication of the Bill. I accept it was too tight. However, there was a detailed pre-legislative scrutiny process and we have a recommendation. I recognise the committee worked to a swift timeframe on that also and I am grateful to it for doing that.

It is not incompatible that there are a number of reasons that we need to move swiftly. I made the point yesterday about State organisations, such as the HSE and the courts - I will come back to the courts in terms of the transition - and private organisations such as banks. Yesterday some Deputies asked why we were working to convenience the banks. Much of this is about the management of the ward's money or the money of people who, if we do not get this legislation passed, will become wards in the future. That is why it is important financial institutions are aware of, and are training their staff to be ready for, this change. That is an important thing and it will be one of the benefits of this. Rather than a ward's money being tucked away in an account in the High Court - we know there have been many problems with that in the past - people will have access to their bank accounts, using that graduated system of support that is provided for in this legislation.

In terms of the transition, my understanding is that there will be a judicial panel established by the High Court to go through each of those 2,100 or so wardships to determine where they sit within the new system. That is being put in place by the court currently.

The Deputy made the point about looking at how the DSS will exercise its powers and consultations. I am happy to look at that on Committee Stage as well.

One of the most significant discussions that we had yesterday - I am sorry Deputy Ward is not here but he was here for almost the entire debate yesterday - was on the issue of the interaction of advanced healthcare directives and mental health and whether we address it in this legislation or in the significant and necessary reform of the Mental Health Act 2001 that is being worked on by the Department of Health. It is important to say that anybody who is receiving voluntary mental health treatment will be able to avail of advanced healthcare directives. Their ability to use an advanced healthcare directive in terms of the treatment they receive is provided for under this legislation.

The issue is involuntary treatment under Part 4 of the 2001 Act. The position, in terms of my Department's engagement with the Department of Health, is that the latter is looking to revise entirely the 2001 Act. There was a general scheme published in July 2021 and that is undergoing a pre-legislative scrutiny, PLS, process. There is also work continuing within the Department of Health to draft the legislation. That will entirely change the laws for the better in terms of mental health. The question is, how does what we are doing here plug into that. Deputy Ward suggests we put something into this Bill that covers this discrete area of mental health by amending the 2001 Act, but the 2001 Act is about to be entirely amended by what the Department of Health is doing. We will have to come back and retrospectively amend this Act anyway. There is also a question in terms of the expertise on this, particularly in terms of involuntary detention, and that the expertise lies with the Department of Health as the officials who look at the issue of mental health are in that Department. Deputy Ward has said he will bring forward amendments. I will look at those amendments. I will also continue to engage with the Department of Health to see how we address this. I cannot make any absolute commitments on this but we all share the view that the position of people who are in involuntary detention and their ability to use advanced healthcare directives needs to be addressed. There is agreement on that. There is only a question of whether that is best done in this legislation or in the reform of the Mental Health Act 2001, which is a priority for the Government. I will look at that on Committee Stage. I cannot make an absolute commitment as to what the outcome will be but I will look at that. I recognise it is an issue of concern to many.

There is strong agreement in this House about the need to end the outdated system of wardship. I do not fully understand still, I will be honest, how the 2015 Act was never fully initiated and why it has taken this long but I do not want the next Oireachtas scratching their heads and asking why has wardship still not been abolished. We have the Decision Support Service, DSS. It is ready to undertake this important role. It is ready to support people's capacity. It is ready to support those who need the benefit of this legislation.

I look forward to engaging with Deputies and Senators at subsequent Stages. I believe that we can get a system that finally ends wardship and that creates a real structure for support for those who have some impairment to their capacity. That is something that we are all agreed on.

Question put and agreed to.