Joint Committee on Disability Matters díospóireacht -
Thursday, 23 Jun 2022

Accessing Justice: Discussion

Chairman

The purpose of today's meeting is to discuss accessing justice. On behalf of the committee, I would like to welcome Ms Saoirse Brady, executive director, and Ms Sarahjane McCreery, Irish Penal Reform Trust, IPRT; Mr. John Farrelly, CEO; and Dr. Susan Finnerty, Mental Health Commission; and Mr. Jerry Carroll, chair, and Ms Fiona Murphy, Irish Criminal Justice and Disability Network, ICJDN.

I remind committee members that they are only allowed to participate in this meeting if they are physically present on the campus of Leinster House. I ask members who are joining remotely to confirm whether they are on the campus prior to making their contributions. For anyone watching us online, witnesses are accessing the meeting remotely due to unprecedented circumstances, and I ask people to bear with us if any technical issue arises.

Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. I advise witnesses giving evidence from locations outside the parliamentary precincts that the constitutional protections afforded to witnesses attending and giving evidence before the committee may not extend to them. At this point, we do not have clear guidance on whether privilege extends to them. If witnesses are directed by the committee to cease giving evidence, they must respect that direction.

Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.

I ask Ms Murphy to make her opening remarks.

Ms Fiona Murphy

I thank the committee for this opportunity to address it. In writing this statement I am much reminded of a young boy I was humbled to know, Kevin Dunford from Ballina, County Mayo. A bright young boy with a life limiting condition, Kevin was non-verbal. Despite these challenges, Kevin had the innate ability to communicate honestly and assertively using all his other senses, his beautiful eyes, hand movements and gestures.

Inspired by Kevin and his ability rather than his disability, we began to study international evidence relating to the prevalence of persons with a disability engaging with the criminal justice process and their over-representation within the prison population.

We wanted to explore how we could ensure every measure possible is taken to support persons with disability who engage with the process. Concerned by the possible consequences for those with a disability, in particular individuals with hidden disability, it was important to not only understand their lived experience, but also the experiences and challenges of those working in the system and their awareness of disability and neurodiverse conditions, mental health, addiction and early childhood trauma. In light of the UN Convention on the Rights of Persons with Disabilities, UNCRPD, and other domestic legislation, the need to establish a practical working dialogue and understanding in relation to access to justice, human rights, structural violence and abuse was ever more critical. With the support and encouragement of the Association of Criminal Justice Research & Development, ACJRD, and other stakeholders, the initiative was developed through examining research, the gathering of anecdotal evidence and capacity building. The ICJDN was developed and has contributed to various events and discussions over the last number of years. Importantly, in 2016, seminars entitled "Towards Compliance with the UNCRPD: the Role of Criminal Justice Professionals" were held in Limerick and Dublin. To bring together participants from the areas of disability, health and criminal justice, a round-table discussion organised by the ICJDN was held to facilitate the sharing, learning and exploration of opportunities that would improve access to justice in a way that would be cost-effective, collaborative and mutually beneficial. What clearly emerged from the report was the willingness and active desire, from both criminal justice agencies and the disability community, to work proactively to meet a shared challenge in a very human way. While in the process of designing online training materials, with thanks to Ms Breda Fitzgerald, Ms Kasia Zabinska and board director Mr. Eamon Ryan, an important communications technique was developed. The PARC technique was showcased in 2019 at a neurodiversity and criminal justice conference. Feedback was incredibly positive with an eminent professor, Dame Sue Bailey, a consultant child and adolescent forensic psychiatrist and professor of child and adolescent mental health, remarking that the material should be on every public health screen across the country, thus illustrating its flexibility across other settings such as healthcare and education.

Our training also includes a powerful video shared by Prosper Fingal. Produced by and featuring individuals with a disability, it aptly places the audience in a position where they are left examining their own attitudes and unconscious bias. In designing materials we were keenly aware that whenever an individual engages with a public service body, there is an automatic power imbalance and more often than not, those who are engaging with these services are in a vulnerable position. Rather than focusing on individual disabilities, we sought to concentrate on how persons may present, the challenges and obstacles they face, while also providing training on how to tune in and manage encounters compassionately and safely through effective communication, de-escalating techniques, tools for early identification and when to seek support and intervention.

In 2019, we delivered a pilot training programme to the Garda Síochána. The model of our training delivery is multidisciplinary and depends very much on the participation of healthcare professionals and advocates with lived experience of disability. This was followed by further approaches and discussions with three other criminal justice agencies. Proposals were sought, submitted and positively received. The structure of the ICJDN was informed by findings in the UK from the Bradley report, where Lord Bradley identified that one of the main problems with previous policy development has been the piecemeal approach taken. He noted that one of the most common phrases repeated to him by stakeholders time and again was that people and organisations were working in silos.

The ICJDN continues to take an inclusive and holistic social model approach to addressing effective access to justice for persons with a disability. All the valuable work to date has been done pro bono and this is not sustainable. Despite continuing engagement, we are concerned that the proposed actions from the round-table discussion and evidence-based research have yet to be implemented. Due to Covid-19 and its disruption across public bodies, we are still awaiting responses to each of our proposals. In the meantime we need to highlight the necessity for adequate funding and a more formalised structure to progress the work of this initiative. We strongly feel our approach will effect change and positively impact on the criminal justice process for those with a disability, rather than serving as a mere box-ticking exercise. We believe an investment of resources is likely to provide a net benefit to the State in terms of delivering improved outcomes for people with a disability who deserve support and specialist care provision. However, this can only be done through the appropriate delivery of valuable supports and resources that honestly address the challenges faced by those working in the system.

Chairman

I thank Ms Murphy and I invite Mr. John Farrelly to give his opening remarks.

Mr. John Farrelly

Go raibh maith agat, a Chathaoirligh, agus dia daoibh go léir.

On behalf of the Mental Health Commission, I would like to thank the committee for the opportunity to address it today. I am joined by my colleague Dr. Susan Finnerty, who is the independent inspector of mental health services. The commission is an independent statutory body established under the provisions of the Mental Health Act. Our principal functions are to promote, encourage and foster the establishment and maintenance of high standards and good practices in the delivery of mental health services and to take all reasonable steps to protect the interests of persons detained in approved centres. The remit of the commission has also been extended by an amendment to the Assisted Decision-Making (Capacity) Act 2015, which is going through the Oireachtas and will provide for the establishment of the decision support service for adults with capacity difficulties.

People with a mental illness should receive compassionate care and treatment in a modern health system. They should not be incarcerated in prisons or criminalised. Although there have been improvements in the attitude towards, and treatment of, people with mental illness in the justice system, there still remains significant barriers. Dr. Finnerty recently published her report, "Access to Mental Health Services for People in the Criminal Justice System", which raises a number of specific concerns. People with a mental illness and who have been accused or convicted of a criminal offence have unequal access to mental health services compared to those who have not offended. Ireland is far behind comparable countries in providing a comprehensive forensic mental health service when a person with a mental illness encounters the criminal justice system. Also, there are many gaps in general Irish mental health services, which lead to mentally ill people ending up in the criminal justice system. As the inspector and I saw with our own eyes, we still have people who are severely ill locked in isolation units and other areas of Irish prisons awaiting mental health care in appropriate settings. This fundamentally breaches their human rights and Ireland has been rightly criticised by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment for this.

In some prisons, the in-reach teams are substantially under-resourced and struggle to provide a comprehensive service. The inpatient forensic mental health service in the Central Mental Hospital, CMH, provides care and treatment based on international best practice, but the waiting list for a place in the CMH continues to grow as more mentally ill people enter the prison and justice system. After decades of reports stating that the CMH was not fit for purpose, we have a new state-of-the-art building in Portrane which should be opening soon and this will increase the beds from 102 to 170, including a unit for children and an intensive care regional unit. This will bring our forensic beds from two per 100,000 to 3.5 per 100,000, but this is still substantially lower than many other European countries.

In regard to the south of the country, there is very poor resourcing of the forensic mental health teams in Cork and Limerick. It is quite astounding and still there is no coherent plan for the development of these services. There are no intensive care regional units in the south and west, as set out in the Government policy of a "hub-and-spoke" model of forensic mental health services.

Our interviews and those of the inspector with service users, prisoners and carers were enlightening and demonstrated that there are multiple points in the pathway for care of people with mental illness who enter the enter the criminal justice system that require resourcing and changes. This is especially urgent in the diversion of mentally ill people away from the criminal justice system into mental health services where their needs can be met.

I want to briefly touch on An Garda Síochána. In 2009, the commission and An Garda Síochána issued the Report of Joint Working Group on Mental Health Services and the Police. That report made a number of recommendations including the creation of a 24-7 statutory social work service, expanded training for gardaí and the implementation of adequate court diversion programmes to deal with minor criminal matters involving individuals with mental health problems. Twelve years later, very few of these recommendations have come to fruition. One issue which we have focused on over the last few years is the increased use of section 12 of the 2001 Mental Health Act which gives a member of An Garda Síochána the power to take a person into custody if they believe a person is suffering from a mental disorder and that because of a mental disorder there is a likelihood of the person causing immediate and serious harm to himself or herself or to other persons.

Section 12 was enacted with the expectation that it would be used in exceptional circumstances. There has been a worrying increase in the volume of applications made. There were 1,971 admission orders for involuntary detention from the community in 2021 and 35% of these were initiated by members of An Garda Síochána, compared to 32% in 2020.

Given the increase in applications made by An Garda Síochána, the Mental Health Commission, MHC, contacted the Garda Commissioner and the Policing Authority and met with them in July 2021 and at a number of meetings throughout the year to discuss its concerns. I acknowledge that An Garda Síochána has engaged in a meaningful way with the MHC over recent years and shares a number of the MHC's concerns, not least the human rights aspect of section 12.

The statistics provided to the MHC by the Garda in relation to use of section 12 applications are worryingly high. In 2018, 4,000 people were taken in custody using this section of the Act. This may indicate a systemic issue where thousands of people are being detained by the Garda ostensibly with little independent oversight or scrutiny. As it stands, An Garda Síochána still remains the only agency immediately available day or night to respond to crises in the community, and the limited training and support available to its members creates a situation where the most vulnerable in our society are potentially being failed. People with a mental illness should receive compassionate care and treatment in a modern health system as opposed to being forced into a criminal justice system which cannot meet their needs or vindicate their human rights.

Ms Saoirse Brady

I thank the committee for the invitation and the opportunity to present on this very important topic of accessing justice. The Irish Penal Reform Trust, IPRT, is Ireland's leading NGO campaigning for rights in the penal system and the progressive reform of Irish penal policy. Our core message is that a penal system that protects and promotes human rights, equality and social justice and relies upon prison only as a measure of last resort will contribute to safer communities for everyone. People with disabilities are a significant but overlooked population in the Irish penal system, and the IPRT accordingly welcomes the opportunity to highlight the challenges these individuals face and to identify the ways in which the State can better vindicate their rights in accordance with the UN Convention on the Rights of Persons with Disabilities. The topic under discussion today is wide-ranging but we will focus on three key issues. First, the lack of data on disability within the penal system; second, the treatment of people with disabilities in the penal system; and third, the importance of diversion from the criminal justice system. I will be echoing some of what my colleagues have said.

The IPRT’s research has identified significant gaps in data on the prevalence of disability in Irish prisons. Reasons for these may include some disabilities going unrecognised within the penal system and-or issues arising in respect of the screening tools used in prison. The limited data available in Ireland primarily relate to psychosocial or mental health disabilities and intellectual disabilities within the prison system. Mental health among the prison population is a serious concern, with some studies estimating that the prevalence of severe mental illness among the prison population is four times that of the general population. It is estimated that nearly one in three prisoners in Ireland has an intellectual disability, although data are incomplete. The Inspector of Mental Health Services has noted that people with intellectual disability are over-represented in all parts of the criminal justice system, including police custody. The absence of robust and current data on the extent of disability of all forms within the prison population and those interacting with the criminal justice system makes it difficult to address the rights and needs of these individuals. Therefore, we recommend that systems for collection of data on disability should be devised and implemented across the criminal justice system to identify and address the barriers faced by people with disabilities in accessing their rights.

Prisoners with disabilities face many challenges in navigating the prison environment. For example, the IPRT’s 2020 research report, Making Rights Real for People with Disabilities in Prison, identified significant concerns about the environmental accessibility of Irish prisons for people with disabilities, with some individuals being unable to leave their cells or wings for large portions of their prison stay and, accordingly, having limited access to education, employment and recreational activities. There were also difficulties for prisoners with disabilities in accessing healthcare services such as physiotherapy and speech therapy as well as mental health supports that go beyond psychiatry. The report found that inaccessible information and a lack of information on the prison and its rules can cause difficulties for people with disabilities in following the disciplinary system. There was a lack of awareness among prisoners with disabilities on their right to reasonable accommodation, with some describing being denied access to devices they relied upon outside of prison. There were concerns around people with mental health illness being held in isolation and-or safety observation cells, which in some circumstances amounted to solitary confinement or, in other words, confinement in isolation for more than 22 hours a day.

Bullying of prisoners with disabilities has been identified as a matter of concern in both the IPRT’s report and a recent report from the Inspector of Mental Health Services. This can sometimes result in people trying to hide their disability while in prison. Therefore, we recommend the Irish Prison Service undertake accessibility audits of all prison settings, engage in a disability equality analysis of its service, and ensure all those working in prison receive training on responding to the needs of prisoners with disabilities. We also recommend that all prisoners experiencing mental health difficulties should be offered appropriate non-psychiatric responses, including access to psychology, counselling, and survivor-led peer support. The placement of people with disabilities in solitary confinement should be prohibited, in line with international human rights standards.

The IPRT wishes to take the opportunity to re-emphasise that people with severe psychosocial disability should not be in prison and should, wherever possible, be diverted from the criminal justice system and provided with access to appropriate treatment in the community or an alternative therapeutic environment. The focus of the recently established high-level task force on diversion is welcome, and the IPRT eagerly awaits publication of the task force’s final report and implementation plan.

Regarding the potential human rights issues in diverting prisoners into secure psychiatric settings, the IPRT is clear that there must be robust consent processes and procedural safeguards in place whenever a transfer is to take place. The IPRT is soon to publish research on the rights of people detained in secure forensic settings in Ireland, which will further inform and develop this position. We call for the high-level task force final report and high-level implementation plan to be published without further delay.

I thank the committee members again for the invitation to attend today’s session. My colleague Ms Sarahjane McCreery and I are happy to discuss further any aspect of our statement or answer any questions the committee might have on the issues raised or anything else we can help with.

Chairman

We will go to our members. First is Senator Seery Kearney.

Senator Mary Seery Kearney

I thank the Chair and I thank the witnesses for their very powerful opening statements. I was called to the Bar and did my first year in devilling in criminal law, which involved a lot of prison visits. That experience of closed doors and absolute control over your life when you go through them has haunted me since. From my very first visit to subsequent visits during that year, I came away with that sense of helplessness. How frightening that must be for someone entering into the prison system for the first time. If a person has a mental health illness or issues, intellectual disabilities, or any disability, how much more helpless must that person be? That came across strongly, particularly in Ms Brady's opening statement.

Establishing the data is very important, as are establishing rights. How are rights vindicated in the prison system for people with disabilities? I went on to be an employment lawyer so I am used to disability under both the Equal Status Act and under the Employment Equality Act 1998 and the vindication of rights for people with disabilities in that context, but how is that in the prison system? The threat and the experience of bullying must be all the more if a person is obliged to hide a disability. I appreciate any advice back on how the committee might do that.

It is very powerful to hear the sheer number of people against whom section 12 is being used, and it is quite frightening. While I understand its necessity in law and that there is a necessity to have that power in certain, very exceptional, circumstances, it strikes me that the training and competencies should be questioned. I have enormous respect for the Garda Síochána, but in the heat of a moment, what checking or oversight is there of its members' discretionary use of this? We have checks and mechanisms in other areas of criminal law that safeguard against the exercise of Garda discretion in situations like that, but what systems are there and what recourse to appeal is there? It would be important to hear that.

Coming back to Ms Murphy, it horrifies me every time there is a major incident or a significant incident in the country that there is a rush to judgment of mental health issues. This instant rush to judgment always belies an unconscious bias at national level. The presumption is that once you have a mental health issue at all, somehow you are out of control and you must be curtailed and corralled. There is a whole appalling discriminatory attitude that follows that. Ms Murphy's contribution has articulated very well the programme she runs to expose that unconscious bias. Given the vulnerability of suspects, what can we do to support them? Might we ensure they have representation beside them so they are not left vulnerable? Perhaps I had best leave it there. The erosion of the presumption of innocence once any sort of mental health issue manifests concerns me, regardless of whether that issue has always been there - it may have been diagnosed and gone untreated - or is being exacerbated by being in a situation where you are a suspect or in the prison system. What more can we do and how can we do it?

Chairman

I thank the Senator. We might start with Ms Brady, then go to Ms Murphy and then perhaps Mr. Farrelly.

Ms Saoirse Brady

I will start and then I might go to my colleague Ms McCreery. I thank the Senator for her comments. How are rights vindicated in the prison system? First of all you have to know what rights you have before you can vindicate them.

Senator Mary Seery Kearney

Yes, very much so.

Ms Saoirse Brady

The information that is provided to people is extremely important. The IPRT has done a "know your rights" accessible guide in plain English, based on the prison rules, setting what your rights are. In the research I referred to, we found that if somebody is deaf in the prison system there are very limited interpretation facilities. Again, that comes down to resources. There is an ongoing review of the prison rules. We hope that will take into account some of these issues around disability. However, we need to look at other more innovative ways to communicate with people and ensure they know their rights from the outset in order for them to be able to vindicate them at all. Ms McCreery may wish to add something.

Ms Sarahjane McCreery

To add to what Ms Brady said, in the Making Rights Real for People with Disabilities in Prison report, prisoners spoke of a lack of information in the form of Braille, audiovisual information and easy-to-read language. That applies not just to the prison rules but also to all types of information pertaining to what goes on in prisons, like the prison regime and how to navigate the prison. That information was extremely inaccessible for the 16 prisoners in the report. On vindicating rights, the IPRT always flags the need for an effective complaints mechanism in prisons, and that is really important to flag again now. In our report, people in prison with disabilities noted they were afraid to make a complaint to the complaints system in case they received ill-treatment by the prison officers they were complaining about. A lot of the time that was related to disability discrimination, which is really problematic. We have been calling for it for a very long time, but an effective complaints mechanism needs to be in place in prisons and currently it is not. It has been under review for a long time now and it has been promised but we need it effective immediately and not just for people with disabilities but for everybody.

Senator Mary Seery Kearney

Perhaps we can take the IPRT's guidance and the committee can write a letter in support of its position.

Chairman

Okay. Does Ms Murphy want to comment?

Ms Fiona Murphy

To take a slightly different perspective that complements what has been said already, we need to look at the first interactions between a person and the criminal justice system and at how somebody who is not managed appropriately could end up in the criminal justice system. It really needs to start on the street with the first encounters. I am reminded of an allegation that was made against a young man with autism that he was hitting two girls with sticks. He was arrested and was not treated very well in custody. He was awarded costs against the State. There was an issue about whether the man was lawfully detained under the Mental Health Act 2001. The man could not communicate verbally and his mother was dead, so neither could give evidence. That shows how quickly the unconscious bias steps in. By all accounts, previous complaints had been made to the gardaí about suspicious activity around the area and I think they jumped to a conclusion about this individual. It goes back to training. Gardaí are under-resourced anyway. In our interactions with them, individually they are quite passionate about addressing this issue as well.

Chairman

I thank Ms Murphy. Do Mr. Farrelly or Dr. Finnerty wish to add something?

Mr. John Farrelly

On the Garda?

Senator Mary Seery Kearney

Yes.

Mr. John Farrelly

I will speak about the figures we have given. It came to our attention during Covid. The figures went up at the start of Covid and people were especially vulnerable. It seems that the gaps in our health system are being filled by our justice system, that is, by the Garda. With the lack of community services, gardaí are stepping in. To give a sense of this, 650 people end up detained in a centre. There is a whole process to vindicate your rights, including tribunals to ensure that things are procedurally correct and that you also have a mental disorder, because deprivation of liberty obviously must be in accordance with law where it happens and must be limited. Our understanding from the Garda is that section 12 was used approximately 5,700 times in 2020. If only 650 of them ended up in a centre, what happened to the other 5,100 cases?

Senator Mary Seery Kearney

Yes.

Mr. John Farrelly

Then you would have to ask about the rights in terms of transparency of vindicating your rights. We do not know what is happening there.

The Senator asked what the checks and balances are. We do not know what they are. We have met the Garda on a number of occasions. For example, if you are brought into a station for drunk-driving, you have more rights than a person who is picked up based on the view of a garda that he or she has a mental disorder. You would have to question the capability of a garda to make that assumption, so it is a questionable area. We have raised it with the Garda and the Department of Justice and we think there should be a process in place to vindicate people's rights so at the very least they get the same rights as a drunk-driver and it is time-limited to a degree.

On training, we have met with the Garda. Again, we did not get a lot of information. We got some information but it seems that the Garda does a lot of its own internal training. It trains its own people. This year we have organised with the HSE that we are going to do a full day with gardaí at a senior level and different people in the health services. However, on training the new gardaí, you would think that needs to come from professionals outside the Garda in both the legal and mental health areas.

I will hand over to Dr. Finnerty.

Dr. Susan Finnerty

It is interesting, and the point has been made, that people with disabilities need to be diverted away from the criminal justice system. We have to go back further than just the Garda. We have to look at what mental health services are providing. In general, what most mental health services are providing is an out-of-hours service that centres around emergency departments. The only option for gardaí at that stage is to bring people either directly to an approved centre or inpatient unit or bring them in through the accident and emergency department. On diversion, there are no arrest-stage diversion services in Ireland. A pilot is supposed to be starting in Limerick. It has not received any funding as far as I am aware.

It is a good model that is based on the Memphis model, which is the original police diversion. Were mental health services to be available to gardaí in order that they could assess whether someone has a mental illness or disorder and whether they need inpatient treatment or support from other agencies, that would be the key to stop gardaí bringing people for admission or holding them in Garda stations for lengthy periods while they try and decide what to do. Arrest at the stage of police diversion is really the key to stopping people with disabilities actually getting into the criminal justice system.

Senator Mary Seery Kearney

To clarify, in no way am I disparaging gardaí. I do not think that any of us is. We are advocating for greater supports for them. They are in a position where they have to make decisions unsupported. I take the point. External training would be of assistance, along with a panoply of other options.

Deputy Pauline Tully

Our guests mentioned a couple of themes that we hear regularly as being common across all sectors of society, namely, the lack of data on disability in communities and also the lack of training in disability and mental health. The IPRT said it estimated that nearly one in three prisoners in Ireland has an intellectual disability, so it could be greater. It indicated that we need a system for the collection of data. Has consideration been given to what kind of system is required or how it would work? I am sure there are many with intellectual disabilities who also have mental illnesses, and we need to gather that information. How do you solve a problem if you do not know the extent of it?

The Mental Health Commission provides inspection of approved centres. Are all prisons considered approved centres and are they inspected? We have to realise that many prisoners have mental health issues. That has been said here before. It was mentioned that a general prison inspection report has not been seen since 2014. Have all these reports been gathered but not published? If so, why is that? It is worrying that these reports are not being published. Again, if we do not know the extent of the problems in the prisons, how can we deal with them?

A number of people mentioned the high-level task force and diversion. Will they expand on that aspect? It would seem to be a good development, but what if it is not properly resourced? Reference was made to the joint working group on mental health services and the police and the fact that 12 years on there has been no change. We must ask if it was the case that it was not resourced properly or was not implemented. There are many different reports. If proper resources are not provided and if these reports are not implemented, they will not make the difference they are supposed to make. What advice is there for the committee or the Government on how to move these matters forward? You can have reports coming out of your ears but unless they are implemented and properly resourced they will not make the difference that they should make.

Ms Sarahjane McCreery

On data collection, IPRT launched its annual report, Progress in the Penal System 2021, in February. It focused on transparency in the system, so specifically on data and data collection systems. We propose that the criminal justice system generally should have a system of equality monitoring that is in line with the CSO and that staff and prisoners should be trained. Staff should be trained to recognise why the data is being collected and how to support prisoners in collecting it and prisoners should be trained in how, in the context of their everyday lives in prison, it would benefit them to disclose this kind of data. We also made recommendations on race and ethnicity data.

Mr. John Farrelly

The lack of data across the whole system needs to be resolved. To be fair to the Department of Justice, it is one of the lead Departments that is concentrating on putting data across the system. However, it has not been successful in this regard to date. I often wonder because if you did not have the information right on an arrest or transfer warrant that is required in law you would be released so why not change the law whereby if there is specific data in respect of disability that it is included? Where it was available to the State previously, it should be available now. That is one way.

Dr. Susan Finnerty

The Deputy is right. We inspect approved centres and produce reports after our visits. Those reports are published. We do not have any jurisdiction in prisons. That is the function of the Inspector of Prisons who does inspections with his or her team and produces reports. The decision to publish the reports rests with the Minister for Justice. I have no further information on that.

The extent of mental illness in prisons came to my attention and that of the previous Inspector of Prisons. Through her assistance, we did visit the prisons. I was able to go with her as part of her inspection team and I was able to write the report on circumstances in the criminal justice system for people with mental illness. However, the Mental Health Commission does not have any jurisdiction in the prisons. That is the Inspector of Prisons.

Ms Saoirse Brady

We understand that the decision to publish rests with the Minister for Justice. These inspections have been carried out and they are routinely carried out by the inspector of prisons but they have not been published. We did see very detailed inspection reports published around Covid-19 on all the different prisons. They have been incredibly useful and informative because we think there should be transparency and these reports should be published. That would lend us real oversight into what is happening in a prison. We also understand that the legislation to put in place a national preventative mechanism to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is imminent. I understand that it is imminent. That would broaden things out to ensure that people who were detained in health facilities would also fall in the remit of that new preventative mechanism that would be co-ordinated by the Irish Human Rights and Equality Commission. That is something to look at and something we have often called for.

The UN Human Rights Committee is examining Ireland next week in Geneva under the International Covenant on Civil and Political Rights. We have made a submission on that which deals with some of those issues. We can send that to the committee.

Ms Fiona Murphy

A report was compiled by Dr. Claire Edwards and Professor Shane Kilcommins for the National Disability Authority some years ago and it recommended that there should be data collection at entry point into the criminal justice system. It might have mentioned that PULSE could be used for that data collection. Anecdotal evidence has suggested that people have ended up in court, and it is only at that stage that it becomes apparent that they have a disability.

An Garda Síochána also has a really important role in respect of early identification. Then all the other agencies in the system can be made aware and some cases might not have to proceed as far as they do.

Mr. John Farrelly

The high level task force was mentioned. I think it is led by former Minister of State, Kathleen Lynch. It comprises the Garda, the Prison Service, civil servants from the Department of Justice and the Department of Health and a few other people. We have raised these areas with the members of the task force. They are looking at different areas so they can put actions in place. One of those was the diversion programme, it must be a year ago now. The idea was that they were going to pilot that in Limerick to see if we could roll it out in the rest of the country. Very often it is a matter of the interactions between different State agencies. Is the Department of Health or the Department of Justice funding it? It was the first one I got from the Garda and the leadership in Limerick and they were really determined to put it in place. It sounds like a good idea. That alone happening would set a trend.

Deputy Holly Cairns

I thank everyone for being with us today. It has been one of the most revealing and frankly unnerving sessions we have had. The failure of the justice and penal system to recognise and respond to people with disabilities is quite shocking. In some cases it seems to amount to people being punished because they have an unidentified or unsupported disability or even an identified one. The witnesses' insights and recommendations are invaluable in helping us to prepare reports and hold authorities to account.

Article 12 of the UN Convention on the Rights of Persons with Disabilities, UNCRPD, aims to ensure that people with disabilities can make their own decisions. Given that the Assisted Decision-Making (Capacity) (Amendment) Bill 2022 is being rushed through the Dáil at the moment I will mainly focus my questions on that. My first question is primarily for the Mental Health Commission. A significant source of concern was reflected in the Joint Committee on Children, Equality, Disability, Integration and Youth during pre-legislative scrutiny about the lack of engagement with disabled people's organisations, DPOs, in developing the decision support service draft code of practice. There was actually no engagement with DPOs on that. Could Mr. Farrelly clarify whether governance arrangements are in place to ensure that decision support services are engaging meaningfully with disabled people and their representative organisations in the performance of their functions? I refer especially to organisations speaking to the experience of people with intellectual disabilities of mental health services, and neurodivergent and older people.

The Assisted Decision-Making (Capacity) Act 2015 retains the use of substitute decision making but General Comment No. 1 on Article 12 of the UNCRPD took Article 12 to prohibit substitute decision-making. When Ireland ratified the convention in 2018 the State entered a declaration permitting the retention of substitute decision-making. I am curious to know the commission's position on substitute decision-making. If anyone else wants to come in on that as well, that would be great.

Another area of concern is the exclusion from the Bill of people involuntarily detained. The Government plans to leave changes in this area to legislation amending the Mental Health Act. I am wondering if the witnesses would agree that this is unhelpful and stigmatising to other people with mental health difficulties in realising rights around will and preferences. Should the Government address these issues in the Assisted Decision-Making (Capacity) (Amendment) Bill 2022? Finally, the Assisted Decision-Making Act 2015 is about valuing an individual's will and preference. Do the witnesses have suggestions or examples, perhaps from other countries, of how this can be achieved in carceral settings, be it imprisonment or those involuntarily detained? How do we take their capacity to make decisions seriously?

Mr. John Farrelly

I have heard that comment before, that there was no engagement with people with disabilities in terms of the decision support service guidelines. It is not correct. Unless there is some technical term that I am missing, even to give that impression is just not correct. We have put a lot of work into engaging with stakeholders. We have a stakeholder forum every month where we ensure that the voice of the person is heard. I am happy to send the Deputy the facts of the matter. Ms Áine Flynn has contact with hundreds of organisations and people non-stop. It may be that there are issues with Assisted Decision-Making (Capacity) (Amendment) Bill 2022 but we are not accountable for bringing that through; the Department is. In terms of the Mental Health Commission's decision support service, DSS, there is not. If there is some technical thing we have missed or that we are not speaking to the right people, I would want to know. The reason we have taken on this decision support role is that we want to vindicate the rights of people with a disability and we want to vindicate people's human rights. There may be some confusion regarding what one group is informing the Deputy on what we are doing and I am happy to discuss that. Quite genuinely, we have put the engagement at the centre of it.

Deputy Holly Cairns

Which DPOs has the Mental Health Commission engaged with, then? Excuse me if I am incorrect.

Mr. John Farrelly

I can get Ms Flynn to send the exact details on to the Deputy. We have engaged with hundreds of organisations and thousands of people with disabilities. I do not know. Maybe the Deputy could tell us the ones we have not engaged with and I will send that on to Ms Flynn and we will absolutely rectify it.

Deputy Holly Cairns

Any of the ones that have come before this committee said they were not engaged with on the draft codes of practice. One of the biggest concerns with the Assisted Decision-Making (Capacity) (Amendment) Bill 2022 codes of practices, for example, was that----

Mr. John Farrelly

The codes of practice were out for public consultation from, I think, November to February, a period of three or four months. If the Deputy has factual evidence that this is the case she must, please, give it to me and I will absolutely make sure that those people are included. We have seen hundreds of groups and thousands of people. Our engagement got a significant response. We want to hear from people. Why would we not want to hear from people? The whole point of the Act is to help these people.

Deputy Holly Cairns

One of the main concerns is those draft codes of practice making provision, for example, for a bank teller to refuse somebody their money in a bank. That flies in the face of the whole purpose of the Assisted Decision-Making (Capacity) Act 2015. They were the concerns we heard at the committee from DPOs that said they were not engaged with. That would be assuming incapacity rather than assuming capacity. The DPOs we engaged with were extremely put out by that, understandably, and so was the committee.

Mr. John Farrelly

I can understand why people would be put out by that if that is what people perceived. It is something we would definitely like to fix if we can get evidence that it is actually occurring or would occur. There is an assumed capacity provided for in the Act. One of the powers we have under the Act is to monitor, enforce and regulate that people are using the Act in good faith. I actually read that in the paper. The idea that a bank teller would somehow not believe a person had capacity and refuse them an account - I was part of a HIQA investigation where we went into the centres for people with disabilities. None of them had accounts. The staff were running the accounts and using the money. We heard similar things like that from the staff. However, when we pushed it, thousands of individuals were given bank accounts. This was before the Act.

Quite genuinely, the Act may have some interpretive and analytical flaws and academic, perceptual flaws. Most Acts do. I am more than happy to relay that question to the director and give the Deputy a formal reply. I would be very surprised if someone went to a bank and that happened with the powers we would have. If they came to us, we would absolutely go after that area to make sure they were using the law properly. The other thing is working with the banks. I know the banks have received a lot of flak but they have actually engaged with this in terms of training and bringing people up to standards in terms of the Act. It is unfortunate if what the Deputy says is the case. I would not like that to be the case. I hope we can get a meeting with the people who think that may be the case. Through all our consultation and talking to thousands of people, that never really came up until the Deputy mentioned it.

Deputy Holly Cairns

I have to say I am surprised that Mr. Farrelly is surprised that people are refused money in a bank. It is a regular occurrence for older people and people with intellectual and physical disabilities. It is not unheard of at all.

That is the whole purpose and why we need this legislation-----

Mr. John Farrelly

The Deputy says it is a regular occurrence but where is the evidence for that?

Deputy Holly Cairns

I hear it from people coming in to my office, even people I know. It absolutely does happen. The committee has heard that it is a reality that people are being treated differently because they have a disability. It is not correct to say there was loads of time and engagement; even the Department was upfront and honest with the committee about the fact that they had to rush through the Assisted Decision-Making (Capacity) Act 2015 (Section 7(1)) (Commencement) Order 2021 because there is a case being taken against the State.

Mr. John Farrelly

We are not the Department.

Deputy Holly Cairns

There was not adequate engagement. That is not true. We all know that and they have asked for-----

Mr. John Farrelly

Can I clarify something? The Deputy referred to the codes not the Act. I clarified to the Deputy previously that the Act was something for the Department. I am not standing over the Department. I am speaking about the codes. The Deputy is giving the impression we have excluded people with disabilities which we have not. We have put all efforts in place to do that. I am giving our view. We are not the Department, we are the Mental Health Commission. The director had the codes so I am giving the alternative view from our perspective. I am happy to write to the committee with the facts - the number of people with disabilities and organisations we engage with.

Chairman

We would appreciate that.

Deputy Holly Cairns

There is a need to review the codes of practice perhaps.

Ms Saoirse Brady

The only thing I would say on the decision support service is that we really need to think about the practicalities and the logistics of people in prison being able to access that once it is brought in. Obviously we have talked a lot about resourcing the gardaí and how they are under-resourced. I would say the same for the Irish Prison Service. Prison officers are not trained in how to deal with mental health issues in the way that sometimes they need to be. It is an unfair pressure that is put on them. That is something we really need to think about. The report we mentioned earlier talks about the under-resourcing of interpretation services for people who may be deaf or of people being isolated in their cells because they cannot cope with the physical conditions in prison due to their disability. When there is overcrowding that is an issue as well. People should be in single cells.

On Deputy Cairn's other point regarding the exclusion of people involuntarily detained, along with our colleagues in mental health reform we have written to the Taoiseach on this very recently. We think this should be addressed now. It will need to be addressed at some point so why would we kick it down the road? There is a huge issue there for the exclusion of people who are involuntarily detained particularly around things like advanced healthcare directives. We would hope that would be addressed before the Act is finalised even if it is being pushed through at a very fast pace.

Ms Fiona Murphy

The only comment we have to make relates to the work that we have done. We have engaged a lot not just with disability organisations but also with self-advocacy groups. Unfortunately because we have not been able to roll out what we are trying to do, we do not think it is fair to take up their time without having the resources to help them as well. That is where we are at really.

Chairman

Thank you. Ms Eileen Flynn is not able to attend in person this morning and she asked me to raise a few questions on her behalf. She works with the newly formed Joint Committee on Autism as well. She has been speaking to autistic people about their experiences and one of the things she has learned is that some of the sensory inputs others might not notice can actually be physically painful for autistic people. In fact many autistic people describe it as being like torture. In accessibility reviews of the prisons and other places of detention, have they been assessed for sensory accessibility? What screening procedures are in place within the justice system for neurodiversity, intellectual disability and people with other impairments who are vastly over-represented in prisons and face prejudice as witnesses or defendants at trials?

All our guests have talked about the lack of information on disability and the huge barriers to be overcome to make sure that people with disability have equal access to justice. What can we do immediately to improve the data collection and sharing between agencies involved in the justice system on disabilities? Why can the Garda public attitudes survey and the quarterly national household survey not start collecting and sharing useable information on disabilities immediately? Could the witnesses explain areas where they feel the revised Assisted Decision-Making (Capacity) Act 2015 falls short of the standard set in the CRPD when it comes to people with disabilities' equal access to justice? One example of this is not going far enough when making sure disabled persons are accommodated on juries and still using substitute decision making instead of upholding all disability people's rights to supported decision making.

Those are Ms Flynn's comments. Can some of the witnesses reflect on them and comment?

Mr. John Farrelly

Can I give a written answer on the substitute question because it is obviously a substantive matter? It has been raised a couple of times. I will make sure the director gives the rationale and the MHC's opinion in the Decision Support Service, DSS, on it.

Chairman

We would appreciate that.

Ms Saoirse Brady

Regarding the autism piece, and for those who have not already listened to Senator Lynn Ruane's podcast around voices in prison, one of the things talked about is a project by AsIAm, the autism charity, put on hold due to Covid-19. That was a huge issue for people with autism within the penal system, many of whom might be undiagnosed. AsIAm members are the experts in the area so we hope their project in the prison system will be up and running again. The Making Rights Real for People with Disabilities in Prison report identified that if people with sensory issues who may have neurodivergent conditions, have to share a cell this can be very overwhelming for them and the noises from other people, the lack of personal space can cause them quite a bit of trauma. Single cell occupancy is something we have recommended and mentioned before. The numbers in prison at the moment are the highest they have been in a very long time. We saw that the numbers reduced dramatically during Covid-19 for various reasons. We have more than 4,000 people within the prison system. I think it is a 7% increase on the same week last year. That is of concern. The numbers were starting to go in the right direction. We were starting to see people serving more community service orders and other diversion mechanisms being put in place. The more people who are in prison, the more we have to think about those with disabilities and how we are accommodating them and addressing any of the issues they might have.

Regarding the sharing of data between different agencies, GDPR is the thing that I imagine a lot of the agencies would mention. When they are collecting the data, they would have to look at putting protocols in place and whether or not they are getting consent from people to share their information with other agencies. I do not see how it could be done without that. That is something that could perhaps be explored by some of those agencies.

Ms Fiona Murphy

On people with autism and sensory issues, there are lots of other people who present with disabilities who would have sensory issues as well. The environment needs to be explored, whether it is a Garda station, a prison or a courtroom. It has to be looked at holistically. If the environment is right and supported properly, that is the most beneficial support you can give to someone with a disability. The Criminal Courts of Justice are laid out properly but there are many other courtrooms around the country and many Garda stations where the environment would not be conducive for people with disabilities. A lot of investment would need to be put into that.

Chairman

I thank the witnesses for their contributions this morning and for the depiction of the challenge within mental health and within the Prison Service for people with disabilities.

Every Thursday morning, we meet with witnesses who empower us with information on the challenges that are facing people with disabilities, which are right across society. This morning’s meeting was on the justice and prison systems and mental health. As our guests were answering the questions and making their opening contributions, it was clear we have a long way to go as a society to make sure that we are completely and absolutely inclusive not just in Ireland, but the world over. I was struck by the responses to Senator Flynn's first question on having regard for autistic people within the prison services and the Garda stations. We have an awful lot of work to do on it.

I thank the guests and committee members for their evidence. If there are other issues that we have not addressed, I would appreciate any other information. Mr. Farrelly committed to giving us some further information, which I would greatly appreciate.

Ms Fiona Murphy

We would be happy to share the information around the PARC technique with committee members if they would like to have a look at it.

Chairman

We would very much appreciate it. If there is anything following today's meeting that anyone thinks of, I ask them to please send it to us. The more information we have, the better we are at doing the job we are trying to do, which is to make it better for people with disabilities across the spectrum and across society and improve their living conditions, wherever they are.

I thank one and all for coming before us and being so honest. We would greatly appreciate any information our guests can forward to us. I thank our members as well. Does Senator Seery Kearney wish to speak?

Senator Mary Seery Kearney

I would be anxious to follow up that our committee has a significant voice and input into the rights of people with disabilities in the Prison Service and on how we can advance and support the review that is going on. We have a valuable contribution to make as a committee on that. I wish to propose that. I appreciate that perhaps we may want to speak about it in private. However, I know the heart of this committee would be very much to speak out in support.

Chairman

Certainly.

Mr. Jerry Carroll

I wish to make one point. There is great goodwill around the table. I am not an expert in the areas we are discussing, but one thing I noticed is the lack of co-ordination on bringing things together. The Bradley report from way back included information about everything operating in silos. Having listened to quite a number of bodies, all doing great work, such as gardaí, prison officers and so on, the one thing that is lacking seems to be some drawing together of the strands that should inform us all as we are going along. Just awareness training and getting people on side would be the way to do it. That is the point I would like to emphasise, and we probably will emphasise it in anything we send back to the committee. We appreciate very much the opportunity this morning as well.

Chairman

Mr. Carroll's point was extremely well made. We see the evidence given to us in our committee. We looked into where we go – is it health, education or disability? What are the agencies that we need? There is no overarching body that, first of all, has power to implement, but is actually capable of bringing the strands together. Mr. Carroll’s point was well made.

I thank one and all. We will revert back to what Senator Seery Kearney raised. It is certainly something to look at. I thank our team, of course, for keeping us all on the straight and narrow and making sure that everything is done properly. We appreciate it. Our meeting stands adjourned.

The joint committee adjourned at 10.54 a.m. until 9.45 a.m. on Thursday, 7 July 2022.