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Select Committee on Children, Equality, Disability, Integration and Youth díospóireacht -
Tuesday, 14 Jun 2022

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

Sections 1 and 2 agreed to.
SECTION 3

Amendments Nos. 1, 2, 17, 19 and 27 are grouped and will be taken discussed together.

I move amendment No. 1:

In page 6, between lines 6 and 7, to insert the following:

“(e) section 85(6);”.

The section relates to women being pregnant, advance healthcare directives and the impact on the unborn child. The section is unconstitutional since the repeal of the eighth amendment. I am surprised to see this is still here following previous commitments from the Minister about it. When the 2015 Act was passed, section 85(6) provided that an advance healthcare directive would be valid or applicable insofar as it contained the refusal of treatment that would have a deleterious effect on the unborn. The 2022 Bill, as it stands, does not remove this language despite the subsequent repeal of the eighth amendment of the Constitution and the enactment of the Health (Regulation of Termination of Pregnancy) Act 2018. I propose the deletion of section 85(6) to ensure that all pregnant people can avail of advance healthcare directives. The report on the pre-legislative scrutiny also recommended this, in recommendation 54.

Amendment No. 2 is a red line for me. I have mentioned it to the Minister a number of times. It relates to people detained under Part 4 of the Mental Health Act 2001. This section relates to the removal of section 85(7) to allow advance healthcare directives to be extended to those involuntarily detained under the Mental Health Act. Leaving this section in is discriminatory to those with mental health difficulties and does not allow for parity of treatment for all Irish citizens. Every citizen of this country must be afforded an equal right to exercise their will and preference. This must apply to mental health as well as physical health. We could be waiting for years for the update of the Mental Health Act. I am on the Sub-Committee on Mental Health, which is addressing that Act at the moment. This is my second committee meeting today. I have no recollection of a discussion about assisted decision-making capacity when we were getting the report on the Mental Health Act ready. I do not know how we are going to review or amend the Act when we have not even discussed it at the pre-legislative scrutiny stage.

The Mental Health Commission and the Decision Support Service support the extension of this right to people under the Mental Health Act. I have discussed the dangers of not extending this right under Part 4 to people with the Minister previously. In 2020, 2,463 people were involuntarily admitted under the Act. That means that an average of 2,500 people a year could be subjected to forced psychiatric treatment, the forced administration of medication and forced electroconvulsive therapy without the protection of a legally binding advance healthcare directive. People's mental health difficulties are often episodic. The do not happen all the time. They have an idea of what their treatment should be and what worked for them in the past. If they make an advance healthcare directive, it is informed. People who provide an advance healthcare directive relating to physical care would not have the same experience as somebody who has mental health difficulties and episodic issues. I do not know how my physical health will be in five years, but people with a history of mental health difficulties know what treatment works for them and they should be able to have an advance healthcare directive.

Amendment No. 17 addresses 16- and 17-year-olds. Currently, they can consent to or refuse physical healthcare decisions, but this does not apply to mental health care decisions. They do not have any right to consent to or refuse mental health treatment. I hope that will change in the review of the Mental Health Act. At the moment, they cannot refuse hospital admission. Guardians can decide to admit them without their consent and 16- and 17-year-olds cannot refuse a particular course of treatment, such as electroconvulsive therapy, or even conversion therapy, which came up the last time we discussed this. The review of the Mental Health Act might bring those issues into line but we do not know how far away that is. There is no national advocacy service for people under the age of 18 who are accessing mental health services. Young people are not having their voices heard about mental health care and treatment.

Amendment No. 19 seeks to remove section 85(7) to allow advance healthcare directives to be extended to those involuntarily detained under the Mental Health Act. As I said, leaving this section in is discriminatory to those with mental health difficulties and does not allow for parity of treatment for all Irish citizens. I will not repeat that argument.

Amendment No. 27 is also about people detained under Part 4 of the Mental Health Act. They are the only cohort excluded from access to the protections of this Bill. It is discriminatory and exclusionary. They should not be omitted. It needs to be deleted in line with the upcoming mental health legislation. There are two Department of Health amendments, which require the Assisted Decision-Making (Capacity) (Amendment) Bill to include mental health and to which we would like to bring the Minister's attention. They are on page 165 of the draft heads of Bill to amend the Mental Health Act 2001, contained in the explanatory notes. This amendment introduces designated healthcare representatives as per sections 88(1) and 136 of the Assisted Decision-Making (Capacity) Act 2015. An amendment is required to ensure these provisions can operate and ensure parity of treatment for those with mental health issues. Subsection 2 reflects recommendations 126 to 131, which recommend that the advance healthcare directives should apply to persons receiving treatment under this Act.

I should have said that Deputy Whitmore's name is also attached to amendment No. 19, so she can speak and the Minister can respond.

My party colleague, Deputy Cairns, is unable to make it today. This amendment addresses concerns about respecting advance healthcare directives for individuals engaging with mental health. Under section 85(7) of the 2015 Act, an advance healthcare directive will not be complied with as it relates to the refusal of mental health treatment is the directive maker is detained under the Mental Health Act.

Mental Health Reform pointed out the seriousness of this issue in its submission on pre-legislative scrutiny, stating that the individuals affected "have no legal right to have their advance wishes respected, even though they had capacity to make decisions about their healthcare and treatment at the time of making their advance healthcare directive". The representative of the organisation went on to say: "There is no other group of individuals that is specifically excluded from this legal right."

Moreover, several stakeholders pointed out that this does not take account of parity between physical and mental health. Apparently, departmental officials had indicated that this matter could be addressed on Committee Stage. What is the Minister's current position on that point?

The Deputies referenced three separate areas in their contribution and I will look to address each of them. Amendment No. 1 seeks to repeal section 85(6) of the 2015 Act. Section 85(6) was originally included to qualify and limit the application of advance healthcare directives in the context of pregnancy. As Deputies will be aware, the provisions regarding advance healthcare directives set out in Part 8 of the Act of 2015 are the responsibility of the Minister for Health. My Department has been in contact with the Department of Health in the preparation of the Bill, including on this proposed amendment. Section 85(6) was inserted into the original 2015 Act to take account of the previous constitutional position regarding the unborn. Following the repeal of the eighth amendment, that position has changed. As was said during the Second Stage debate, I am happy to agree to the deletion of section 85(6) and I have issued instructions to the Office of the Parliamentary Counsel to draft the required provisions. That will allow for formal drafting. I do not propose to accept Deputy Ward's amendment specifically but I will be bringing forward a Government amendment on Report Stage in Dáil Éireann that will fully delete section 85(6).

I will turn to amendments Nos. 2, 19 and 27. There is no disagreement between us on the importance of parity in the operation of advance healthcare directives to physical and other types of healthcare and to mental healthcare. However, this is a technically complex issue. We are looking at it in light of the ongoing work with regard to the entire revision of the Mental Health Act 2001. It is important to look at what is being done here in that context. For that reason, I am not in a position to accept these two amendments that would impact section 85(7) and section 136.

The application of the 2015 Act to persons whose treatment is regulated under Part 4 of the Mental Health Act 2001 is currently being considered by the Department of Health. It is appropriate that full and proper consideration would be given to this within the context of the ongoing reform of the 2001 Act. In particular, that consideration needs to benefit from the policy and clinical expertise on the issue of mental health that exists within the Department of Health.

The Minister for Health and I are in full agreement with Deputies that there is a need for parity of care. I want to be clear that there is no question of the issue not being addressed. The Government will address the gap here but there is a risk of moving too hastily in making the changes and not properly sequencing what we are doing with this legislation and the Mental Health Act. That 2001 Act is going to be radically changed, if not entirely replaced, by the new mental health reform Bill. I note there have been calls for the outright deletion of these provisions. I cannot commit to doing that in what we are addressing today. However, this issue will be addressed within the context of the reform of the 2001 Act.

Deputy Ward asked where we are with respect to the reform of the 2001 Act. My understanding is that work is under way. A general scheme was approved by the Government and published in July 2021. The Office of the Parliamentary Counsel is currently working with the Attorney General's office to progress the completion of the Bill in a timely manner. Pre-legislative scrutiny is being undertaken by the Sub-Committee on Mental Health and it is a priority for the Minister for Health and the Minister of State, Deputy Butler, to get that legislation passed. Last week, the Minister of State, Deputy Rabbitte, and I met with representatives of Mental Health Reform. They clearly articulated the concerns that Deputies Ward and Whitmore have also articulated. We responded with our concerns about acting without the overall understanding of the change that is going to be made to the mental health legislation. The real concern relates to people who are involuntarily detained where there is a risk of them doing harm to somebody else. We must consider to what extent a decision by such people to refuse certain treatments on the basis of an advance healthcare directive will then prevent a clinician undertaking a treatment that lessens the risk of harm to somebody else. That is the central issue. There is a complicated balance of constitutional rights involved. The issue must be addressed but there is a tricky balance to strike. That is why we feel that the analysis and balancing required is best undertaken through the wider understanding of the mental health reforms. Whatever is decided in terms of that balance can then be used to amend the 2015 Act.

We committed to the representatives of Mental Health Reform, and I am happy to commit again, that the Minister of State, Deputy Rabbitte, and I will write to the Minister for Health and seek an on-the-record commitment from the Government to address this particular issue and also to seek an update on the timeline for the delivery of a completed Bill on mental health reform, which I know is very much desired in response to this issue and a whole range of other issues.

Amendment No. 17 addresses an issue that must be looked at in the context of wider reform. The issue here is slightly narrower. While I cannot accept amendment No. 17 today, I will continue to engage with the Departments of Health and Justice on the issue of the application of the Bill to 16- and 17-year-olds. This amendment would allow minors who have reached the age of 16 to make an advance healthcare directive. It would, in effect, allow minors to make decisions regarding their own treatment. The 2015 Act was designed for adults because it related to decisions about property, banking and the like; 16- and 17-year-olds were not considered because they are thought not to have capacity in respect of the commercial issues that much of the Act addresses. It was never envisaged that the 2015 Act would apply to those under the age of 15, having regard to their legal status as minors. That remains the position in most cases. However, I am aware in the context of healthcare that 16- and 17-year-olds have the legal capacity to consent to medical, surgical and dental treatment. Persons under the age of 18 have agency but there is a body of case law that is not entirely clear about the capacity of a 16- or 17-year-old to refuse consent to a treatment if their parent or guardian wishes them to take that treatment. That is another example of the balancing issues involved.

I am wary not to overpromise. The issue here may be a little less broad than the issue we were speaking about in respect of the previous set of amendments. We will go back to the Departments of Health and Justice and see if there is anything that could be brought forward on Committee Stage. I cannot make an absolute commitment at this point. I see the need but a balancing is required. Those 16- and 17-year-olds can consent but there remains a question mark over their capacity to refuse consent, particularly when there is a clash in views between them and their parents.

I am surprised to see there remains a reference to a "deleterious effect on the unborn" in the Bill at this stage. The Minister said he has had consultations with the Department of Health on that issue. The phrase is still in the legislation. What difference is there between what I am trying to do with my amendment and what the Minister will bring forward?

As we all know, this is a complex piece of legislation. It is tying into an even fatter piece of legislation that is as complex. The key thing is to make sure that drafting is done in a way that is absolutely compatible with this Bill and the existing Act.

That is why it is really important that we have the view of the Parliamentary Counsel on everything we do.

In the view of the counsel, is this amendment not compatible? Does it not work? What is the rationale behind not accepting this amendment?

The Cabinet gave approval today for the deletion of the section, which we both agree needs to be deleted. That section will have been done through the Parliamentary Counsel. That is why it is important that we make sure every element of this legislation is drafted in a way that is fully compatible with the rest of it. There is no disagreement between the Deputy and me. This section will be removed.

Regarding the Mental Health Act 2001, as it stands, it seems that 2,500 people per year will not be covered by this legislation - those who are involuntarily detained under that Act. The Minister mentioned the sequences within the Act and the review of that Act. I do not know how long that will take and I am on the relevant committee. We undertook pre-legislative scrutiny and had discussions but we did not have any stand-alone discussion, debate or testimony from witnesses or experts on the impact the legislation we are talking about here will have on people with mental health issues. It did not come up. What conversations has the Minister had with the Department of Health? Why was this issue not flagged with that Department to make sure it would form part of the pre-legislative scrutiny of the Bill? There is a report coming out very soon. I am not sure what is in it because I have not seen it but, when we do see it, I imagine there will be very little mention of the Assisted Decision-Making (Capacity) Act within. I am still a little bit unsure about how this is going to work.

I will ask the Minister to clarify another matter. If we amend the Mental Health Act 2001 to allow those detained under that Act the same rights as everybody else, will we then have to come back at another stage to amend this legislation?

I imagine that, when the Mental Health (Amendment) Bill 2021 is brought forward, it will have to include a provision to ensure it fits in seamlessly with the legislation we are passing today and the 2015 legislation. It is better that it be done that way because the work the Deputy, the committee and the Department are doing on that mental health reform Bill will provide an opportunity to tease out the difficult constitutional balance that has to be achieved in terms of the right of people who are involuntarily detained to refuse certain treatments even where that refusal will result in a risk to the safety of somebody else. That is the key issue. We do not have an answer to that question and that issue of balance as of yet. We spoke previously about the need and desire to get this Bill passed and to abolish the wards of court system. As I understand the situation, I cannot see us being in a position to fully clarify that issue within a timeline that would allow for all of the other very important provisions of this legislation to be delivered. However, I will be very clear that there is no disagreement on that need for parity and this is an issue that needs to be addressed. It is just a matter of listening to the experts and of the need to give that very difficult legal balance the requisite time and consideration. I do not believe we have that time in the context of the amendments we are bringing forward at the moment.

I have one final point. The Deputy said that he did not know when the Bill is to come forward. One of the reasons I have made a commitment to engage with the Minister for Health on a public and written basis is to allow me to understand the timelines we are looking at with regard to delivering the mental health reform Bill, which we all agree is very important.

The Minister mentioned time. We are amending the 2015 Act and, therefore, we have had seven years to make sure that everybody was included in this and that nobody was left behind. There was plenty of time for that in the past seven years. I will get into a debate about the timelines in this legislation and how it seems to be rushed when we are discussing a later amendment.

Amendment put:
The Committee divided: Tá, 4; Níl, 6.

  • Funchion, Kathleen.
  • Sherlock, Sean.
  • Ward, Mark.
  • Whitmore, Jennifer.

Níl

  • Costello, Patrick.
  • Crowe, Cathal.
  • Dillon, Alan.
  • Farrell, Alan.
  • Murnane O'Connor, Jennifer.
  • O'Gorman, Roderic.
Amendment declared lost.

I move amendment No. 2:

In page 6, between lines 6 and 7, to insert the following:

“(e) section 85(7);”.

Amendment put:
The Committee divided: Tá, 4; Níl, 6.

  • Funchion, Kathleen.
  • Sherlock, Sean.
  • Ward, Mark.
  • Whitmore, Jennifer.

Níl

  • Costello, Patrick.
  • Crowe, Cathal.
  • Dillon, Alan.
  • Farrell, Alan.
  • Murnane O'Connor, Jennifer.
  • O'Gorman, Roderic.
Amendment declared lost.
Section 3 agreed to.
SECTION 4

Amendments Nos. 3, 5, 7, 8, 16, 37 and 44 are related and will be discussed together.

I move amendment No. 3:

In page 6, after line 34, to insert the following:

“(2) A court shall construe this Act in a manner that gives effect to the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006, and for this purpose the court shall have regard to the provisions of the Convention, including its preamble.”.

I welcome the Minister. This is a complex Bill and, to be fair to him, there is an honest attempt to promulgate legislation for what is a complex area.

In this amendment, I wish to ensure that the language around the UN Convention on the Rights of Persons with Disabilities, UNCRPD, which was concluded in 2006, is firmly embedded in the principal Act. Now that we have ratified the convention, I seek to embed an explicit requirement for courts to interpret the Act in a manner that gives effect to the convention, thereby strengthening the potential for it to be interpreted in a manner compatible with the human rights obligations under that convention.

Does the Deputy wish to speak to any other amendment in this grouping? There are a number of them.

I was speaking specifically to my amendments.

Amendments Nos. 5 and 8 address the same area. Disabled persons organisations, DPOs, and disabled people themselves have repeatedly been left out of the narrative on decisions that affect their lives. The State has a requirement under the UNCRPD to engage directly with disabled people on legislation that affects them. They must be given their voice. This is not being done sufficiently, though, and we need to legislate for it. The Decision Support Service, DSS, is doing good work, but there needs to be legislation to allow it to apply for the resources it needs to facilitate this engagement. As I mentioned on Second Stage, we were told on pre-legislative scrutiny stage that it should be a case of nothing about us without us where disabled people were concerned.

Amendment No. 7 inserts two further guiding principles. Regarding the first of those, the amendment reads: "The guiding principles contained in subsections (1) to (10) above shall be interpreted consistently with the United Nations Convention on the Rights of Persons with Disabilities, in particular, Article 12, and General Comment 1 of the United Nations Committee on the Rights of Persons with Disabilities." Now that Ireland has ratified the UNCRPD, embedding an explicit reference in guiding principles strengthens the potential for the Act to be interpreted in a manner compatible with the human rights obligations under the convention. The Act was continually referred to by successive Ministers during its development as being an essential part of Ireland’s preparations for ratifying the UNCRPD. Agreeing this amendment recognises that best practice in this field is continually evolving and reaffirms Ireland’s commitment to refining and reinterpreting our law in a manner consistent with our human rights obligations. Agreeing this amendment signals Ireland’s commitment to a progressive and evolving interpretation of this law in light of the emerging understanding of human rights law.

Regarding the second guiding principle, the amendment reads: "Nothing in this Act shall be construed as imposing any civil or criminal liability on an intervenor, who, in exercising his or her relevant powers, acted in good faith and in accordance with what, at the time in question, he or she reasonably believed to be the will and preferences of the relevant person.”.”." This provision is designed to counteract the criminal offences in decision supports under the principal Act and the 2022 Bill and to remove the emphasis on punishment for getting it wrong where the intervenor has, in good faith, done his or her utmost to assert the relevant person’s will and preference and acted accordingly. This will give much-needed reassurance to individuals considering taking on these roles that they will not be penalised for doing so. It should also ensure that relevant persons can call upon a wider range of potential supporters.

Amendment No. 16 reads: "adhere to the obligations set out in Article 4.3 of the United Nations Convention on the Rights of Persons with Disabilities.”.”."

Regarding amendment No. 44, the Disability Act 2005 takes an overly medical model approach to the definition of a disability compared with the conceptualisation of disability under Article 1 of the UNCRPD. The UN’s understanding of disability is broader than that covered under the Disability Act and is more inclusive and reflective of different experiences, for example, people who have experience of mental health services but do not identify with any label or diagnosis and people who have experienced disability-based discrimination even though they do not themselves identify as disabled people. Given that the function of the Irish Human Rights and Equality Commission, IHREC, disability advisory group is to support IHREC’s work on the UNCRPD, it would be more appropriate to take the convention’s approach to disability rather than the narrow definition of “disability” in the Disability Act.

Ireland ratified the UNCRPD in 2018. As such, the country is bound by that Government decision to the obligations contained within the convention. However, to do what Deputy Sherlock is proposing would be unusual, and possibly even inappropriate, in that it would require the courts under an individual Act to have regard to all the provisions of the convention when the State has already ratified that convention. When we interact with international law, if we want to bring the text of a convention into domestic law, we do so by an Act of the Oireachtas. For example, we signed up to the European Convention on Human Rights, ECHR, and subsequently incorporated it into domestic law. We put the entire text of the convention into a Bill, which became the European Convention on Human Rights Act 2003. We can debate whether we want to make every piece of the UNCRPD directly applicable, which is what the Deputy is attempting to do through a one-provision line. To be constitutionally appropriate, though, we would need the full substantive text of the convention to be incorporated into a Bill if we were looking to make the courts directly bound by every provision of that convention. As such, I am not comfortable with what the Deputy is proposing. Perhaps there is room to discuss whether something like it could be done in future, but it would have to follow the model we adopted with the ECHR, where every provision of that convention was put into a Bill and the Oireachtas had the ability to understand the implications of deciding the question.

I referenced another matter on Second Stage, namely, that section 8 of the 2015 Act set out strong guiding principles that showed what we were about. I will probably speak to them in the context of some of the later amendments. We are not just dealing with the Bill that is before us, which is an amending Bill and is quite dry in its sections. A comprehensive Act was passed in 2015. Unfortunately, it has not been implemented yet, but it has a clear, principles-centred approach to the change that it represents in moving away from the status approach to wardship towards considering people’s individual capacities in the context of their particular situations.

Amendments Nos. 5, 8 and 16 call for a regulation-making power for the Minister in terms of consultation. We are concerned about placing this consultation obligation in legislation. We signed up to the convention in 2018 and one of the obligations flowing from it is that we engage in consultation with DPOs.

If we start to feel that we have to put that in legislation every time, does it suggest that, where we do not have a consultation obligation, the Government, the Minister, the Department or the agency does not have to consult? One of the ideas behind signing up to the UNCRPD was that there would be a general obligation to consult with DPOs. If we start specifying this here, then it will look like we have to specify it in primary legislation every time. Otherwise, the argument can grow that, because we have not specified that the Minister must consult a DPO, the obligation does not apply. There is a risk in enumerating in legislation every time we have to do something if there is a wider obligation that already sets out that we are to engage in that type of consultation.

Amendment No. 7 would introduce two new subsections on guiding principles and the UNCRPD into section 8 of the 2015 Act. I have a similar concern to the one I had about Deputy Sherlock's proposal in amendment No. 3. Deputy Ward is looking to use the general comment of the UNCRPD as a reference source, but the general comment is not drafted as a legislative document or a treaty. It is a discursive interpretative piece and probably does not have the degree of specificity necessary to be used as the source of strict legislative approaches.

On changing the criminal law element, the Deputy is moving to a subjective basis for how the court would determine whether a criminal offence had been committed. There is a concern over this. On the one hand, we want to encourage people to take on the role of intervenor but, on the other, there are certain standards that intervenors have to meet in the care that they show in exercising that role. I would be concerned if this were decided on a purely subjective basis - the person thought that what he or she was doing was okay and, therefore, he or she was not guilty of an offence - and the court was directed to rule on that element. It creates a threshold that is arguably too low.

Amendment No. 44 seeks to assign an alternative meaning to "disability" that is different from the one set out in statute under the Disability Act 2005. I understand that the intention is to insert a social model definition in the 2015 Act, but the definition in the convention is not tight enough to function as a legal definition for the Statute Book. It is important that the definition we use be consistent and well aligned across this Bill, the 2015 Act, the Irish Human Rights and Equality Commission Act 2014 and the Disability Act. The 2005 Act is well known and well used, so I would be worried if we started creating inconsistencies in our definition of "disability" across a range of Acts that were meant to work together.

I take it from the Minister that he is not minded to accept my amendment.

No. I am sorry if I was unclear.

On that basis, I seek leave to withdraw my amendment and submit it again on Report Stage. My rationale for proposing it is that the opening line in the Bill's explanatory memorandum reads: "The Bill gives further effect to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)." I would have thought that it was entirely appropriate for us to give effect to that in an explicit way so as to ensure that the courts "shall construe this Act" in a manner that gives effect to the UNCRPD.

Human rights law is constantly evolving. By adding the amendment, there would be recognition of what was best practice within the field and a reaffirmation of Ireland's commitment to refining and interpreting the law in a manner consistent with our human rights obligations. While the Minister and I will not depart from the necessity of ensuring that we promulgate in a way that is consistent with our human rights obligations, I remain hopeful that he will revert to this matter on Report Stage. If he is determined not to accept the amendment, is there a wording that the Government side could come up with for a specific provision in the legislation to ensure that the courts "shall construe this Act" in a manner that gives effect to the UNCRPD? It is important to bolt this provision into the legislation in a way that it has not been heretofore.

Regarding amendment No. 7, the guiding principles that are set out in the Bill are for intervenors, not for everyone. The first part of the amendment would ensure that the person with disabilities was included in the guiding principles. The second has to do with making the law looser, for want of a better word. This legislation could prohibit someone from becoming an intervenor if the emphasis was on punishment for getting something wrong that was being done for the right reason. There are laws in place dealing with any criminal act, whatever it may be, and these protect people. This Bill could prohibit someone from becoming an intervenor, which is a difficult role.

I will address that point. I take what Deputy Ward is saying on board. We have the DSS to support people, engage with those who are becoming intervenors and provide them with guidance and reassurance about how they can do their job well. However, the UNCRPD also requires safeguards in respect of those who have the role of supporting people who have some restriction on their capacity. Notwithstanding the Deputy's point about there already being rules, some of the positions that we are creating are positions of significant trust and it is important that the law signifies that abuse of that trust is a major issue. The DSS and this Bill can only work with the engagement of intervenors and with people being comfortable with that, and I believe that the DSS will be able to provide that support. I take on board the Deputy's point, but we all know of instances where people have taken advantage of others and, therefore, we are not discussing situations that are outside the realm of possibility. It is important that the legislation set out a clear criminal prohibition in that respect.

On the point made by Deputy Sherlock on bolting the UNCRPD into this legislation, my concern is that if we want to make every provision of the UNCRPD directly applicable in our courts, there is a mechanism set out in the Constitution in respect of how to do that. There are two steps: we sign up to an international law and then we incorporate it by a full Act of the Oireachtas. Respectfully, the Deputy may be taking a shortcut in that regard. I can see what he is seeking to do but the significance of giving every provision of the convention direct application in our courts is big. That is why it took us a long time to make that call in terms of the European Convention on Human Rights. We did it. A step of that magnitude requires the parliamentary scrutiny that such a step would bring. Obviously, the courts can, do and will make reference to the provisions of the convention when they are dealing with issues in this area. We are already seeing the influence of the convention in terms of the courts' jurisprudence in certain cases relating to deprivation of liberty. That is a positive thing. It is probably what the Deputy is seeking to achieve.

I hold to my position of withdrawing the amendment. I want to think about what the Minister has said regarding his interventions in respect of the amendment. I would like to return to it on Report Stage. I want to tease it out a little more in my mind.

Do any other members wish to contribute? How stands the amendment?

I will withdraw it but I formally seek leave to resubmit it on Report Stage.

That is no problem.

Amendment, by leave, withdrawn.
Section 4 agreed to.
NEW SECTION

I move amendment No. 4:

In page 6, after line 34, to insert the following:

“Amendment of section 3 of Principal Act

5. The Principal Act is amended by the substitution of the following section for section 3:

“Recognition of legal capacity

3. (1) ‘Legal capacity’ means the ability to hold rights and duties and to exercise these rights and duties.

(2) The exercise of legal capacity may be achieved either:

(a) by the relevant person, acting legally independently, and with decision-making supports and reasonable accommodation as needed; or alternatively,

(b) by the person(s) appointed to support the relevant person in exercising his or her legal capacity.

(3) Where capacity falls within the purview of paragraph (b) there shall be a requirement that the decision be guided by the decision-making assistant, co-decision-maker, decision-making representative, attorney or designated healthcare representative’s best interpretation of the relevant person’s will or preferences and how these are to be applied to a specific decision(s).

(4) In applying subsection (3), ‘best interpretation’ means the interpretation of the relevant person’s behaviour and/or communication that seems most reasonably justified in the circumstances.

(5) Decision-making assistants, co-decision-makers, decision-making representatives, attorneys, or designated healthcare representatives must be able to provide a reasonable account of how this interpretation was arrived at.”.”.

The amendment responds to a key concern raised during pre-legislative scrutiny and relating to the presumption of capacity. There must be no ambiguity on this issue. Unfortunately, there will be such ambiguity unless a specific amendment is added to copper-fasten the right of presumption of capacity and the importance of will and preference. Independent Living Movement Ireland was clear on the need for the Bill to provide for the presumption of capacity and the protection and promotion of a person's will and preferences. It called for specific reference in the legislation in respect of the aim of legislation to ensure the autonomy of disabled people to live the lives of their choosing. The issue is that, under the current legislation, the decision support services were able to draw up draft codes of practices that allowed a wide range of actors, including legal practitioners, financial professionals and healthcare professionals, to carry out assessments of capacity as they see fit. Those individuals can then make decisions regarding whether to respect the decision of the relevant person based on their assessments and without any recourse to or oversight by the courts.

The draft codes are a separate but related matter. Numerous stakeholders raised concerns in this regard. The key, however, is that the codes and their implications for the rights of disabled people and others were possible under the 2015 Act. Without amendment, there is the potential for a large number of unqualified people to make assessments based on an individual's capacity. The Minister may disagree with that interpretation. Even if he does, however, the key point remains that there is scope for interpretation of what needs to be a cast iron right. The law should operate from the position that all individuals have capacity unless it is proven otherwise, in a manner similar to the presumption of innocence in the legal system. The amendment is designed to guarantee the recognition of capacity and proportionate protection of that capacity. The Minister is aware of the shortcomings of the 2015 Act in respect of presumption and the protection of capacity. The amendment addresses that issue.

The amendment is also in the name of Deputy Ward. Does he wish to speak to the amendment?

No. Deputy Whitmore covered it all.

I will begin by recalling what the principles in the 2015 Act state on this point. Section 8 contains the guiding principles. Section 8(1) provides: "The principles set out in subsections (2) to (10) shall apply for the purposes of an intervention in respect of a relevant person, and the intervener shall give effect to those principles accordingly." Section 8(2) provides: "It shall be presumed that a relevant person who falls within paragraph (a) of the definition of “relevant person” in section 2(1) has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Act." It is important that the 2015 Act that we are amending does contain a presumption of capacity. That is set out in the legislation at the moment. As all present are aware, that does not currently apply because that legislation has not been initiated, but that is our starting point. When the Bill is passed, that will be the starting point.

I am not in a position to accept the amendment because, as drafted, it does not align with the overall architecture of either the 2015 Act or the Bill. It would require significant policy and drafting work to give it effect because the functional model that we are seeking to create through both the 2015 Act and to initiate through the Bill is central to the fabric of the 2015 Act. The fundamental restructuring this amendment represents would make the Bill basically unworkable and that would prolong the abolition of wardship. I think all present agree that wardship needs to be removed.

Beyond that technical element, I do not see the need for the amendment at a policy level. It appears to be based on an assumption that the functional model is not compliant with the UNCRPD on the basis that section 3 does not specifically identify the right to hold and exercise legal rights and obligations. I know that argument has been summarised in the past as the idea that the 2015 Act equates mental capacity with legal capacity, but I do not think this is the real implication or action of the 2015 Act. Taken as a whole, the Act and the Bill provide for the component parts of legal capacity in a way that is compliant with the UNCRPD and has significant and robust safeguards taken on board. The place of the functional capacity model in the Act is designed to maximise a person's decision-making capacity in a manner that explicitly privileges and provides a framework to enforce and safeguard the person's explicit will and preference. This is contrary to the prevailing system of wardship. Assisted decision-making will allow a person to hold and exercise legal rights and obligations. I appreciate the intent of the amendment. I do not think examining section 3 in isolation is helpful in assessing the Act's overall compliance with the UNCRPD. The manner in which the Act as a whole operationalises the functional model is CRPD-compliant and meets the requirement of both Article 12 of the CRPD and general comment No. 1.

On a final point, the term "best interpretation" that is used in the amendment is not a term that is used elsewhere in the 2015 Act and it is unnecessary, given the application of the will and preference that is set out in the guiding principles of the Act. We think that approach gives better legal clarity on the issue as is currently set out in the section. For that reason, I do not propose to accept the amendment.

Amendment put:
The Committee divided: Tá, 4; Níl, 6.

  • Funchion, Kathleen.
  • Sherlock, Sean.
  • Ward, Mark.
  • Whitmore, Jennifer.

Níl

  • Costello, Patrick.
  • Crowe, Cathal.
  • Dillon, Alan.
  • Farrell, Alan.
  • Murnane O'Connor, Jennifer.
  • O'Gorman, Roderic.
Amendment declared lost.
SECTION 5

I move amendment No. 5:

In page 7, between lines 13 and 14, to insert the following:

"(3) The Minister shall include disabled people in all consultations on the Act according with the State’s obligation under Article 4.3 of the United Nations Convention on the Rights of Persons with Disabilities.".".

Amendment put and declared lost.
Section 5 agreed to.
SECTION 6

I move amendment No. 6:

In page 7, between lines 14 and 15, to insert the following:

"(1) Section 8 of the Principal Act is amended by the substitution of the following subsection for subsection (1):

"(1) The principles set out in subsections (2) to (10) shall apply for the purpose of all interactions in respect of a relevant person, and persons shall give effect to those principles accordingly.".".

The amendment is related to amendment No. 7. I will just move the amendment and press it.

Amendment put and declared lost.

I move amendment No. 7:

In page 7, between lines 28 and 29, to insert the following:

"(2) Section 8 of the Principal Act is amended by the insertion of the following subsections after subsection (10):

"(11) The guiding principles contained in subsections (1) to (10) above shall be interpreted consistently with the United Nations Convention on the Rights of Persons with Disabilities, in particular, Article 12, and General Comment 1 of the United Nations Committee on the Rights of Persons with Disabilities.

(12) Nothing in this Act shall be construed as imposing any civil or criminal liability on an intervenor, who, in exercising his or her relevant powers, acted in good faith and in accordance with what, at the time in question, he or she reasonably believed to be the will and preferences of the relevant person.".".

Amendment put and declared lost.
Section 6 agreed to.
Section 7 agreed to.
SECTION 8

I move amendment No. 8:

In page 8, line 21, after "Minister" to insert the following:

"and following consultation with disabled people in accordance with the State’s obligations under Article 4.3 of the United Nations Convention on the Rights of Persons with Disabilities".

Amendment put and declared lost.
Section 8 agreed to.
Sections 9 to 11, inclusive, agreed to.
SECTION 12
Question proposed: "That section 12 stand part of the Bill."

I may bring further amendments to section 12. I am advised by the Office of the Parliamentary Counsel that, technically, subsection (8) may not be needed to give effect to the provision in terms of the requirement on complaints provisions.

Question put and agreed to.
Sections 13 to 17, inclusive, agreed to.
SECTION 18
Question proposed: "That section 18 stand part of the Bill."

I wish to flag something in terms of sections 18, 23 and 47. I intend to bring forward further Government amendments regarding who can conduct capacity assessments in order to broaden the criteria from medical professional to broader categories of healthcare professionals to be prescribed by regulations. This will reduce costs for the relevant person and allow them to access less formal supports.

Question put and agreed to.
Section 19 agreed to.
SECTION 20
Question proposed: "That section 20 stand part of the Bill."

I am considering amendments to this section in order to remove references to certain instances where in the original 2015 Act the director had to defer matters to the court. Removing such references would improve administrative processes and reduce costs for people making applications under the legislation.

Question put and agreed to.
Sections 21 to 25, inclusive, agreed to.
SECTION 26

Amendment No. 9 is related to amendments Nos. 10 and 15 and they may be discussed together, by agreement. Is that agreed? Agreed.

I move amendment No. 9:

In page 19, to delete lines 7 and 8 and substitute the following:

"(d) fees shall be set in accordance with the relevant person’s means or waived in circumstances as set out by the Director in paragraph (c).".".

I will speak about amendments Nos. 9 and 10 together and then I will speak about amendment No. 15. They all relate to costs. Enormous extra expenses are faced by people with disabilities that are not covered by social welfare programmes. Not all people with disabilities are on social welfare. Many people with disabilities are working. People with disabilities are at a higher risk of poverty. It is important to minimise the costs of the decision-making supports in the Bill, so as not to risk further impoverishment of people with disabilities.

Amendment No. 15 is along the same lines. The donor is a person who makes an enduring power of attorney. This section relates to regulations that the Minister could make, including setting the fees that should be charged. Similar to the thrust of other amendments, I ask that the means of the person are considered when setting fees. The person should always be at the centre of the legislation and the Minister should not be allowed to make regulations on fees without taking a person's means into account. The proposed subsection (e) allows for circumstances in which fees can be waived. Therefore, I recommend that the amendment would be accepted to ensure that this is taken into consideration. Subsection (3) states that the Minister should take into account the need to ensure protection of the assets and funds of the donor. I ask that we would take this a step further and explicitly state that the person's means would also be taken into account.

I understand the thrust of amendments Nos. 9, 10 and 15, which seek to consider the means of the person and the financial burden imposed when setting fees and charges for co-decision-making and EPA arrangements under the Act. I assure Members that a thorough process was undertaken in regard to the setting of fees and charges under the Act to ensure that the costs would not be prohibitive to persons accessing provisions of the Act. It is not intended that any additional financial burden is placed on the user of the Act's provisions. The various fees and charges under the Act were established in line with international standards.

I think Deputy Ward alluded to the fact that it is not necessary to means-test in this way as the director does have discretion to entirely waive fees. That will be set out in the regulations that will be brought forward under this Act. All fees are subject to consultation and approval with the Minister in my Department or are prescribed directly by the Minister. I am very conscious that cost should not act as a barrier to accessing the provisions of the Act. Because we have the provision there already to allow for the waiving of the fees, we have the mechanisms in place to ensure that fees do not become a burden.

Amendment put and declared lost."

I move amendment No. 10:

In page 19, between lines 8 and 9, to insert the following:

"(e) fees shall be set so not to cause a financial burden on all relevant state agencies, advocacy organisations and non-governmental organisations, insofar as practicable.".".

Section 26 agreed to.
Section 27 agreed to.
SECTION 28

I move amendment No. 11:

In page 20, between lines 37 and 38, to insert the following:

"(13) (a) Subject to paragraph (b), nothing in this section shall operate to prohibit bona fide representatives of the Press and researchers from attending proceedings to which this section relates.

(b) Where the court is satisfied that it is necessary to do so—

(i) in order to preserve the anonymity of a party to the proceedings or any child to whom the proceedings relate,

(ii) by reason of the nature or circumstances of the case, or

(iii) as it is otherwise necessary in the interests of justice,

the court may, on its own motion, or on application to it by a party to the proceedings by order—

(I) exclude, or otherwise restrict the attendance of, bona fide representatives of the Press and researchers from the court during the hearing or particular parts of it, or

(II) prohibit or restrict the publication or broadcasting of any evidence given or referred to during the proceedings or any part of such evidence, and any such order may, with regard to any restriction, contain such conditions as the court considers appropriate.

(c) In determining whether or not to make an order under paragraph (b), a court shall have regard to the desirability of promoting public confidence in the administration of justice and to any other matter that appears to it to be relevant and shall, in particular, have regard to the will and preferences of the person to whom the proceedings relate.".

A clear and consistent approach is required regarding cases which are held "otherwise" than in public, which both ensures the dignity and privacy of the individual and ensures transparency and promotion of the public's understanding of this new law. While it is vital to ensure the will, preferences and privacy of individuals are respected, it is also crucial that the public is aware of how this monumental change to Ireland's capacity laws is operating in practice.

This amendment allows for judicial discretion and draws on existing legislation to ensure representatives of bona fide press, researchers and legal professionals can still attend and report on cases, subject to reasonable restrictions. The language of the amendment mirrors that which enabled Carol Coulter and her team on the childcare law reporting project to attend and report anonymously on cases regarding child protection in the Family Courts, a project which has been widely praised by the Judiciary and legal practitioners, ourselves in these two Houses as well as social services, for increasing transparency of judicial decision making. We could call it the Carol Coulter amendment. We would all agree that her work and that of her team has been phenomenal.

I suggest setting up a similar type of infrastructure around this Bill, especially for academic researchers. I am mindful of academic researchers in all of this. Such access is important in order that we can generate research papers around this and generate best practice into the future. That is the justification for the amendment.

With regard to transparency, it is vital, as Deputy Sherlock said, to ensure that the will, preference and privacy of individuals are respected. It is also crucial, however, that the public is aware of how this monumental change to Ireland's capacity law is operating in practice and that researchers and bona fide press representatives can access court proceedings.

In terms of the evolution of this provision, in the general scheme, we would fully remove the in camera rule. I know that was subject to quite significant criticism in terms of its implications for privacy and the extremely delicate nature of much of the material that will be discussed in these cases in terms of assessment of people's capacity. We changed this in the Bill as published and we have gone back to the use of the in camera rule. We take a position that is similar and treats this similar to family law, where the in camera rule applies.

I take Deputy Sherlock's point about and view on the research element. I do not necessarily agree with regard to the press. Those are two very different elements. I am trying to think of the rules for press reporting of family law disputes. I do not think there are any. I think there is a complete ban. As I understand it, the exception for the family law reporting project that Dr. Coulter undertakes was a legislative exception that had to be legislated for.

We will have a look at that text in terms of the research point. We will have to speak to the Department of Justice about that. This is not just a call for us; it is a call for the Department of Justice. I do not propose to do it in terms of journalists who are reporting. I do not think that is necessarily appropriate but I take Deputy Sherlock's view. I have launched some of the reports of the child law reporting project. It is very important. There may be a call to do something similar in the context of the implementation of the decision support services and this legislation.

I am happy to withdraw this amendment and come back to this matter on Report Stage, in anticipation of the Minister's reply. I accept the argument made by the Minister in respect of press reportage of the issue and the sensitivities therein.

Amendment, by leave, withdrawn.
Section 28 agreed to.
Sections 29 to 32, inclusive, agreed to.
SECTION 33
Question proposed: "That section 33 stand part of the Bill."

I am considering amendments to section 33 to provide guidance on the charging of fees and expenses by decision-making representatives. My Department is consulting the Office of the Attorney General on that matter.

Question put and agreed to.
Sections 34 to 42, inclusive, agreed to.
SECTION 43

Amendments Nos. 12 and 13 are related and may be taken together.

I move amendment No. 12:

In page 28, line 17, to delete “12 months” and substitute “9 months”.

These amendments are about reducing the amount of time that people are waiting on wardships to be changed over to the new system. Currently, it stands at 12 months. We seek to reduce it to nine months. The other amendment seeks to reduce the relevant time in that instance from three years to 18 months.

I am not in a position to accept these amendments. Amendments Nos. 12 and 13 seek to reduce the period in which a review of a ward's capacity is undertaken. The review periods currently set for capacity review are 12 months and three years, respectively; the latter being where the ward is unlikely to regain capacity. The amendments seek three-month and 18-month periods, respectively. The purpose of the inclusion of section 43 of the Bill is to ensure that a ward who is covered under Part 6 of the Act is entitled to a review of his or her capacity in the same way that a relevant person is entitled under Part 5.

In this regard, the review periods of 12 months and three years replicate those set out in Part 5 of the Act. Under the Act as it is currently drafted, the ward has the same periods as a relevant person. It is important, insofar as possible, that both wards and relevant persons under this Act are treated in the same manner and that the level of burden, stress and administrative procedures is no more than is necessary. What the Deputy is proposing will lead to an inconsistency between the review time for wards and that for relevant persons, which is not desirable.

Amendment put and declared lost.

I move amendment No. 13:

In page 28, line 19, to delete “3 years” and substitute “18 months”.

Amendment put and declared lost.
Section 43 agreed to.
Sections 44 and 45 agreed to.
SECTION 46

I move amendment No. 14:

In page 31, to delete lines 25 to 34.

Section 46 of the Bill amends section 59 of the 2015 Act to remove the option to grant powers to consent to or refuse health treatment from an enduring power of attorney. This means that individuals who wish to confer powers to consent to or refuse health treatment to a trusted supporter, at a time when they are no longer able to communicate their wishes, will have to complete a separate advanced healthcare directive, even if they are also making an enduring power of attorney. This places an additional bureaucratic burden on the relevant person, if that person is required to draft two separate instruments with different requirements for supporting evidence, witnessing, etc.

It is especially burdensome if the relevant person wishes to authorise the same person who holds the enduring power of attorney as his or her designated healthcare representative to consent to or refuse treatment on his or her behalf, in accordance with his or her will and preference. It would also be inconsistent with the approach in the rest of the Act to exclude healthcare treatment from enduring powers of attorney, when decisions about healthcare treatment can be included in any other decision support arrangement under the Act, including decision-making assistance agreements and co-decision-making agreements. It is also inconsistent with the recommendations of the Joint Committee on Children, Equality, Disability, Integration and Youth, which recommends that health and medical treatment decisions should be retained in the scope of an enduring power of attorney. That was pre-legislative recommendation No. 52.

The amendment would also restore the original power which the present Bill proposes to remove from individuals making enduring powers of attorney. We argue that the removal of this power is unnecessary for the Minister's stated purpose of giving clarity to healthcare professionals who have the authority to make a healthcare decision where a person lacks capacity. Sections 12 and 20 of the principal Act clarify that when a person makes a decision-making assistance agreement or a co-decision-making agreement that relates to healthcare, such agreement will be null and void, as respects decisions also covered in an advanced healthcare directive, if that directive enters into force because the person has lost capacity.

Therefore, it is already foreseen in the principal Act that in situations where one or more decision-makers may have authority in respect of powers, for example, to consent or refuse health treatment, the advance healthcare directive and designated healthcare representative take precedence over other instruments. This provides the necessary certainty to healthcare professionals on what instrument to follow in this situation. Therefore, there is no need to remove the option of individual choice from donors of enduring power of attorney, who should be able to continue to confer these powers in their enduring powers of attorney, should they wish to do so, rather than imposing a bureaucratic burden or creating a separate legal instrument with separate witnessing and notification requirements to give effect to their choice.

This amendment deletes the Minister's proposal to remove treatment decisions from enduring power of attorneys, EPAs. Separating decisions about healthcare treatment and enduring powers of attorney will create additional complications for individuals. In essence, if someone wants to plan his or her healthcare decisions in advance, he or she would have to create not one but two instruments, which are an enduring power of attorney and an advance healthcare directive. These would then necessitate two separate requirements for supporting evidence, witnesses for each instrument and separate assessments of capacity to make both instruments, since capacity is to be assessed in a decision-specific manner under the legislation.

It was pointed out to us that these types on instruments would need to be put in place soon after a life-changing diagnosis of dementia, for example. Now, the Government is forcing people to go through two processes. It is useful to quote from the pre-legislative scrutiny report on this issue:

The most widely opposed measure in relation to Enduring Power of Attorneys was the proposed removal of treatment decisions. This proposal received widespread criticism. DPOs, legal experts, advocacy organisations and others argued that this would be less accessible, more complex and inefficient. It was put that it will discourage people from using EPAs and increase costs, as those who wish to have the full range of their advance wishes protected will have to make two arrangements: an EPA and an AHD.

Why is the Minister complicating the issue? People directly affected and advocates have highlighted this move as creating obstacles for people. Some people may want to create separate enduring power of attorneys and advance healthcare directives and the law should allow that, but it should not force everyone down a more complicated route against their will. If this Bill is serious about respecting people's preferences, it needs to empower people and not force them to jump through additional hoops.

As the Deputies noted, the Bill proposes to change the role of an attorney under the Act. The reason for this is that it is considered necessary to give clarity on medical legal decision-making. Amendment No. 14, which is being spoken about here, proposes to re-include treatment decisions as part of the role of enduring power of attorney.

We consulted significantly with the Department of Health on this and the view is that the appropriate place for medical treatment decisions lies with advance healthcare directives, AHDs, and designated healthcare representatives. While I accept that in some cases this will require some additional administration by the relevant person and the decision supporter, the importance of the clarity here should not be underestimated. The removal of treatment decisions from EPAs ensures that there can be no ambiguity between decisions included in EPAs and those included in advance healthcare directives. This clarity is really important to medical professionals treating relevant persons with a registered advance healthcare directive, particularly in cases where either urgent or even life-or-death decisions are required. The supporting statements of an AHD alongside the explicitly health-focused role makes a designated healthcare representative the appropriate decision supporter in such a situation. The DSS can and will work to reduce any administration from this process. It is important to state that it is possible for the same person to act as an attorney and as a designated healthcare representative.

In answer to Deputy Whitmore's question, the reason for the change is to give absolute clarity in some of these life-or-death situations where the potential of two documents saying different things could cause real confusion to a medical practitioner having to make a determination.

There are other jurisdictions in which individuals have the option to confer health powers in an enduring power of attorney and create separate advance healthcare directives. For example, British Columbia allows an individual to create both a representation agreement conferring health and other decision-making powers and an enduring power of attorney conferring powers to make legal decisions, including provision of consent. Queensland also allows an individual to create both an enduring power of attorney conferring health and decision-making powers and an advance healthcare directive conferring health and decision-making powers. It has, therefore, been done in other jurisdictions.

I cannot speak to the detail of the British Columbia system, unfortunately. In terms of our system and what we are trying to create, however, as I said, the Department of Health expressed real concern in terms of the potential. I am talking about potential here; I understand that. However, it is those situations we are talking about where we want no ambiguity or uncertainty.

If views are expressed in two processes that may potentially have some element of conflict, that is really problematic in those situations. It is for that reason we are seeking to adopt this approach. Again, it is important that the same person can be both in terms of the healthcare approach and enduring power of attorney. That goes some distance to addressing issues about additional administrative burdens.

Amendment put and declared lost.
Section 46 agreed to.
Sections 47 to 62, inclusive, agreed to.
SECTION 63

I move amendment No. 15:

In page 51, line 6, after “charged,” to insert “the means of the donor,”.

Amendment put and declared lost.
Section 63 agreed to.
SECTION 64

I move amendment No. 16:

In page 52, between lines 15 and 16, to insert the following:

“(e) adhere to the obligations set out in Article 4.3 of the United Nations Convention on the Rights of Persons with Disabilities.”.”.

Amendment put and declared lost.
Section 64 agreed to.
Sections 65 and 66 agreed to.
NEW SECTIONS

I move amendment No. 17:

In page 52, between lines 22 and 23, to insert the following:

“Amendment of section 84 of Principal Act

67. Section 84 of the Principal Act is amended by the substitution of the following subsection for subsection (1):

“(1) A person who has obtained the age of 16 and who has capacity may make an advance health care directive.”.”.

Based on what the Minister told me, I am happy to withdraw this amendment and reserve the right to return to it on a later Stage.

Amendment, by leave, withdrawn.

Amendment No. 18 has been ruled out of order. The Deputy was advised of this.

Amendment No. 18 not moved.

I am out of practice procedurally. What is the strict rule with regard to amendments that are ruled out of order where one has received correspondence from the committee Chair but one wishes to push back on that correspondence?

I am not trying to put the Chair on the spot but one of my own amendments, No. 24, was ruled out of order on the grounds that it would impose a charge on the Revenue. I accept that but what if we wanted to speak more broadly in the hope that the Minister would respond to the content of an amendment? I accept that amendment No. 18 has been ruled out of order but I would love the Minister to engage on the issue inherent in the amendment.

It is my understanding that the amendment cannot be discussed because it is deemed to be out of order. However, the issue can be raised separately by the committee in a letter to the Minister if members wish to do that. It cannot be discussed today because it is out of order.

Thank you Chair. I accept that.

I move amendment No. 19:

In page 52, between lines 22 and 23, to insert the following:

“Amendment of section 85 of Principal Act67. Section 85 of the Principal Act is amended by the deletion of subsection (7).”.

Amendment put and declared lost.
Section 67 agreed to.
SECTION 68
Question proposed: "That section 68 stand part of the Bill."

I wish to advise the committee that alongside the general transfer of reporting obligations I will be bringing amendments to this section to allow the director of the DSS to make recommendations to the Minister for Health on matters relating to Part 8 of the 2015 Act.

Question put and agreed to.
SECTION 69

I move amendment No. 20:

In page 55, between lines 29 and 30, to insert the following:

“(ca) notwithstanding a digital first policy, the Director shall set out the circumstances in which electronic form will be waived,”.

This amendment relates to the digital divide and digital barriers. Given the nature of the sector, many of the relevant organisations work with disadvantaged or otherwise vulnerable or marginalised communities and groups. Experience during the pandemic showed that the digital divide presented very real barriers to access in the context of online service delivery modes. Aspects of this include low levels of digital literacy, lack of access to the necessary end-user equipment and connectivity and affordability of usage costs. Many organisations feel that this is a crucial area for attention to ensure equal opportunities and choice in access to mental health services and supports in the "new normal" after the pandemic. There is a need to legislate to provide options outside of a digital pathway in order that marginalised groups are not excluded.

Amendment No. 20 seeks to impose a requirement on the director to set out the circumstances in which electronic forms will be waived. A key design principle adopted by the DSS is to offer an accessible, person-centred and digital-first service, in line with wider Government policy. In the majority of cases this enables the design of a flexible system to effectively manage increases in demand in the coming years and ensures the privacy and integrity of service user data. While the DSS has adopted a digital-first approach, the service will not be digital only. It will include a range of options and supports for people interacting with the service. The DSS and I are very conscious that given the range of persons with varying capacity who will seek to rely on the supports of the new legislation, digital literacy cannot be assumed and neither can universal access to IT infrastructure. However, we believe it is unnecessary to make provision in primary legislation for paper or offline forms as the relevant powers will rest with the Director already.

The DSS will provide a range of options and supports for users including paper-based alternatives for those who require them and multiple communication channels including online, phone, e-mail and paper post. Communication will be person-centred and led by the preference of the user. A dedicated information service team will provide support and information. Trained DSS staff will walk users through, or directly assist in the completion of, arrangement applications and other processes, where required. Detailed guidance and information will be provided in accessible forms. There will be direct links to relevant guidance and information in online forms, as well as signposting to appropriate external supports and resources. Those processes will be undertaken by the 20 direct staff of the DSS.

Amendment put and declared lost.
Section 69 agreed to.
SECTION 70
Question proposed: "That section 70 stand part of the Bill."

I wish to advise the committee that I am considering introducing an additional amendment to this section to link investigations regarding designated healthcare representatives to the powers available to the director in this section. Part 8 is the responsibility of the Minister for Health but even though that Minister does not wish to amend the complaints provisions under Part 8 of the Act of 2015, it may still be desirable to clarify that the normal powers of the director in relation to conducting investigations explicitly apply.

Question put and agreed to.
SECTION 71

Amendment No. 21 has been ruled out of order.

Amendment No. 21 not moved.

I move amendment No. 22:

In page 57, to delete lines 23 to 28 and substitute the following:

“(5) Where a temporary prohibition order is made, the Director shall, as soon as is practicable, serve a copy of the order and of the affidavit referred to in subsection (2) on—

(a) the decision-making assistant and relevant person concerned,(b) the co-decision-maker and relevant person concerned,(c) the decision-making representative concerned, or(d) the attorney concerned,

and on any other persons identified by the Director and approved by the court.” .

The rationale for this amendment is to ensure that the order and affidavit are not only served on the decision supporters but also on the relevant person to whom the matter relates. This is essential to ensure the relevant person's right to know about matters concerning them is respected. The relevant person is ultimately the person who is most impacted by such an order and has a right to the information contained in the director's affidavit, which has given rise to the temporary prohibition order, as well as to be informed personally of the order made by the court.

I see that the Minister is scratching his beard. He is thinking about it.

Amendment No. 22 proposes to provide for a copy of the temporary prohibition order and affidavit to be served on the relevant person as well as the decision supporter. The existing provision already includes that the director may serve a copy of the order on another identified person, with the approval of the court, which may, and in the vast majority of cases will, include the relevant person. However, the power has been left discretionary to provide leeway for unforeseen operational circumstances during the operation of the Act. I take it that Deputy Sherlock is not satisfied with that in terms of protecting the rights of the relevant person.

I am trying to bolt on an amendment here that gives an absolute right because I am fearful, notwithstanding the fact that the director and the staff of the DSS will be beyond reproach, of a systems failure. I ask the Minister to take a look at this before Report Stage and consider providing a more firm underpinning of the relevant person's right to know.

I see what the Deputy is trying to achieve with his amendment but temporary prohibition orders will only be sought when there is an immediate risk of harm. We do not want to overly-complicate the process such that an order cannot be put in place because person X or person Y has not been informed yet. We do not want that situation to arise but we will have a look at it and see if there is a way to refine it further. We will have to consult the Attorney General but we will have a look at it and see if we can refine it.

I appreciate the Minister's response. It would be great if it could be teased out before Report Stage. I will withdraw my amendment, with leave to resubmit. If the Minister comes up with a better wording, I will be very happy to accept that on Report Stage.

Amendment, by leave, withdrawn.

Amendment Nos. 23 and 24 have been ruled out of order.

Amendments Nos. 23 and 24 not moved.
Section 71 agreed to.
SECTION 72
Question proposed: "That section 72 stand part of the Bill."

I wish to advise the committee that I will be bringing forward further amendments to this section to account for the transfer of governance and reporting arrangements to me from the Minister for Health.

Question put and agreed to.
Sections 73 to 75, inclusive, agreed to.
SECTION 76

I move amendment No. 25:

In page 60, line 37, to delete "3 months" and substitute "28 days".

This amendment seeks to return to the position as set out in the 2015 Act, which provides for 28 days, rather than three months, as proposed in the Bill, before a copy of the report must be forwarded to the Minister.

Before I address Deputy Ward's amendment, I refer to an amendment I may bring forward on Report Stage. We may look at clarifying the interaction between the provision for enduring powers of attorney made under the 1996 Act and their exact status under the 2015 Act. If a change is needed in that regard, we may bring forward an amendment.

Amendment No. 25 proposes to reduce the period in which the Mental Health Commission must forward the director's annual report to the Minister in my Department and the Minister for Health from three months to 28 days, which was the period specified in the 2015 Act. The change to three months will ensure the commission's reporting arrangements align with its overall obligations and reporting requirements to its parent Department, which is the Department of Health. The commission will now also be required to provide a copy of the annual report to my Department. We are trying to align the two reporting requirements. I am not inclined to accept the amendment at this stage.

I withdraw the amendment on the basis that I may return to it on Report Stage.

Amendment, by leave, withdrawn.
Section 77 agreed to.
NEW SECTIONS

Amendments Nos. 26 and 41 are related and will be discussed together.

I move amendment No. 26:

In page 61, between lines 22 and 23, to insert the following:

"Amendment of section 103 of Principal Act

78. Section 103 of the Principal Act is amended in subsection (3) by the insertion of the following paragraph after paragraph (f):

"(g) disabled persons, disabled persons organisations, experts by experience and independent advocacy organisations.".".

This amendment proposes to amend section 103 of the principal Act to expand the list of bodies and persons with whom the director of the decision support service must consult. That list would now include disabled persons, disabled persons organisations, experts by experience and independent advocacy organisations. During pre-legislative scrutiny, we heard that disabled persons were excluded from much of what is provided for in the Bill, especially in the context of the seemingly rushed process of bringing forward the legislation and the time restraints that apply. On Second Stage, the Minister of State, Deputy Rabbitte, made a 20-minute contribution during which there was no mention of the experience of disabled people. I and other Opposition Members brought our voices to the argument for the inclusion of disabled people and the organisations representing them in any future consultations.

Amendment No. 41 provides for an obligation on IHREC to engage meaningfully and directly with disabled people in order to obtain information and advice on how their rights are being impacted at grassroots level. IHREC has already taken steps to achieve this, including through the creation of a disability advisory committee, but the amendment would ensure further direct engagement with individual disabled persons can occur in line with the mandate set out in the Convention on the UNCRPD.

Before addressing the amendments, it is only fair to say that notwithstanding what may or may not have been mentioned in the 20-minute contribution to which the Deputy referred, I certainly would never question the Minister of State's commitment to vindicating the experience of disabled people. She has demonstrated that over the two years in which she has been in office.

Amendment No. 41 seeks to place specific obligations on IHREC regarding its engagement with persons with disabilities. While I understand the intent behind the proposal, the wording is not really feasible or practical in terms of what it encompasses. In addition, it is not necessary in primary legislation to specify with whom IHREC must consult. The commission is already bound by its role as a human rights monitoring body and that role is further expanded upon in the Bill. It already has a disability advisory committee composed of people with experience of living with disability. It has discretion in this regard and it has a strong record of engagement with all necessary persons and organisations in the conduct of its functions, including engagement with persons with disabilities.

Amendment No. 26 seeks to include disabled persons, disabled persons organisations, experts by experience and independent advocacy organisations as bodies and persons with whom the director of the decision support service must consult in the development of codes of practice to support the 2015 Act. I recognise the value of this amendment and I agree that the persons and organisations specified should be consulted on matters affecting them. That is an obligation under the UNCRPD and it is of huge practical benefit and value to hear the experience of both individuals and groups. While I cannot accept the amendment in its current wording, I will consult with my officials and the Attorney General on the possibility of bringing forward an amendment on Report Stage to address the issue of engagement by the director of the decision support service with disabled persons organisations and others on the development of the service.

Based on what the Minister said, I will withdraw amendment No. 26, with the option to return to it on Report Stage.

Amendment, by leave, withdrawn.

I move amendment No. 27:

In page 61, between lines 22 and 23, to insert the following:

"Amendment of section 136 of Principal Act

78. Section 136 of the Principal Act is deleted.".

Amendment put and declared lost.
Sections 78 to 80, inclusive, agreed to.
SECTION 81

Amendments Nos. 28 to 33, inclusive, are related and may be discussed together.

I move amendment No. 28:

In page 62, line 4, after "146." to insert "(1)".

Those who campaigned for this legislation argued specifically that a comprehensive review clause was necessary to ensure it would remain under ongoing review at regular intervals, given the pace of change in this area globally and advances in practice. This amendment would ensure the legislation is reviewed regularly and can be amended in light of the fast-paced rate of worldwide legislative change on legal capacity law. The amendment also clarifies the central role disabled people and the organisations led and governed by them should play in every review of the legislation.

On amendment No. 30, there is no justification for reviewing Part 8 of the principal Act separately from the remainder of the Act. Even though Part 8 is under the remit of the Minister of Health, the requirement in the provision is for the Minister for Children, Equality, Disability, Integration and Youth to consult with the former in commencing the review process. It would be more appropriate to review the functioning of the Act as a whole.

Regarding amendment No. 31, as Deputy Sherlock noted, those who campaigned for the legislation argued specifically that a comprehensive review clause was necessary to ensure it would remain under ongoing review at regular intervals, given the pace of change in this area globally and advances in practice. Therefore, I recommend adding further provisions to ensure the Act is reviewed at least every three years.

Amendment No. 32 is interlinked with amendment No. 31. It would make more sense to align the reviews of this legislation with those of the Mental Health Act 2001. Mental Health Reform's human rights analysis of the draft heads of this Bill, which we received last October, states:

Persons subject to the 2001 Act, NGOs, mental health professionals and a range of other stakeholders have been frustrated with the delays in reviewing and subsequent implementation of proposed reforms to the legislation. The delays are regrettable given the need to urgently address the serious deficits in safeguarding the human rights of persons subject to the legislation. The authors note that in 2011, the then Minister for Health, James Reilly, and the then Minister of State with responsibility for Mental Health, Kathleen Lynch, established a Steering Group on the Review of the 2001 Act. This was to give effect to the commitment in the Programme for Government to review the 2001 Act. The ERG was subsequently appointed to make final recommendations on the reform of the 2001 Act. The work of the ERG published in 2015 was informed by the recommendations from the Steering Group, which published its report in 2012. It is disappointing that it took 6 years before the Heads of Bill were published earlier this year (July 2021). S.75 in the Heads of Bill provides that the Minister for Health will undertake a review of the amending mental health legislation not later than 5 years after its commencement. S.75 provides that the review will assess the effectiveness of the changes introduced and the Minister is required to make a report to each House of the Oireachtas of their findings and conclusions resulting from the review. The authors are similarly concerned with the delays in the commencement of the 2015 Act. S.93 of the 2015 Act commits to a review of Part 8 on AHDs before the 5th anniversary of its commencement, while s.146 provides that the Minister for Justice in consultation with the Minister for Health will review the functioning of the 2015 Act (other than Part 8) before the 5th anniversary of the date of enactment of this Act.

I could go on, but I will leave it at that.

I will deal with those separately. Amendments Nos. 31 and 33 cannot be accepted. While I understand their intention is to be inclusive provisions and to ensure a robust review, they would actually have the unintended consequence of restricting the review to only those matters stated. The review provisions must be broad enough to address whatever issues may come up at that point in terms of the operation of the Act.

Likewise, amendment No. 32 cannot be accepted. I cannot guarantee that we would be able to undertake a review of the two Acts at the same time. It is an issue that came up earlier. I am seeking clarity as to when the Bill on the 2001 reform Act will be passed and will become an Act. I cannot commit that the reviews of two pieces of law, one that has not been drafted yet, will be undertaken at the same time in a three, four or five-year review. What we can do is to ensure that whatever review of this legislation takes place, if there are recommendations that are relevant to other pieces of legislation, they can be implemented at that time.

Amendment No. 29 seeks to include subsequent reviews after the initial five-year period. Most pieces of legislation have a review period but I am not sure how appropriate it is to have a rolling review. At that stage, we might be looking at entire amending legislation or something like that, and stakeholders can identify whether there is a need for review. Particularly in the context of this legislation, we have to remember that IHREC has a specific monitoring role, so that gives some security. There will be a review after what is now a period of five years but IHREC will be undertaking regular monitoring. That may indicate problems and some issues may come up even before the first review, given IHREC’s monitoring role. I do not think the rolling provision is necessary.

Amendment No. 30 seeks to include Part 8 in the review. I can confirm to members that I will be bringing a Government amendment forward to address this matter to ensure the review of Part 8 will be included in the overall review of the legislation. I agree that a coherent and comprehensive review is desirable and we have agreement from the Department of Health on that point. We are not able to accept this particular wording but we will see that Part 8 is reviewed as part of the overall Act, which is an important step forward.

I will withdraw my amendments with leave to resubmit them. I have an impression that when we legislate, we create obligations on institutions and agencies like IHREC. My concern is that we have another piece of legislation here and the Minister is saying IHREC will have a key role in monitoring the working of that legislation. What we do not have sight of is whether the Decision Support Service or IHREC will see a comparative increase in resources to enable it to carry out the work. We all acknowledge it is an increasing workload. We need to receive some comfort that the Minister, in his engagement with IHREC in respect of this legislation and the legislation that is coming down the track, would give some signal of additional capacity by way of whole-time equivalents for those organisations to meet their increasing demands in terms of monitoring legislation. I would welcome some favourable comment from the Minister in that regard if he is in a position to give that now.

The Minister said that he does not know and cannot give any clarity as to when the review of the Mental Health Act 2001 will be finalised. It is creating that gap in services where people who are detained under the Mental Health Act will not get the same services and the same rights as other people with disability in regard to this Bill. The Minister made an argument earlier and we voted on the amendment and lost, but I will also be bringing this forward at the next Stage in regard to mental health.

We are already entering into the budgetary cycle. I point to the fact that, in the two budgets on which I have been Minister, the DSS received an increase, and IHREC received an increase in the budget designated last October. It is probable neither body got as much as they would like and that is the way of it, but there has been support. We recognise the need, particularly in the context of the DSS, to upscale what is a new organisation, and significant financial resources have been provided over the last number of years. I will always listen to the bodies that fall within the remit of my Department and try as best as I can to support them.

Amendment put and declared lost.

I move amendment No. 29:

In page 62, line 7, after “operation” to insert “and every 5 years thereafter”.

Amendment put and declared lost.

I move amendment No. 30:

In page 62, line 8, to delete “(other than Part 8)”.

Amendment put and declared lost.

I move amendment No. 31:

In page 62, between lines 13 and 14, to insert the following:

“(2) Such review will examine the operation, interpretation and accessibility of the Act and make recommendations for reform accordingly. Such review shall include consultation with, and the active involvement of, persons with disabilities through their representative organisations. Such review shall thereafter take place every 3 years.”.”.

Amendment put and declared lost.

I move amendment No. 32:

In page 62, between lines 13 and 14, to insert the following:

“(2) The review shall be aligned with the review of the Mental Health Act 2001 and subsequent amending Acts.”.”.

Amendment put and declared lost.

I move amendment No. 33:

In page 62, between lines 13 and 14, to insert the following:

“(2) A review under subsection (1) shall include consultation with, and the active involvement of, persons with disabilities through their representative organisations and shall examine the operation, interpretation and accessibility of this Act and make such recommendations for its reform or the reform of its administration as appear appropriate.”.”.

I will withdraw the amendment and seek leave to resubmit it on Report Stage.

Amendment, by leave, withdrawn.
Section 81 agreed to.
SECTION 82

Before we move to the amendments, I seek clarity in regard to section 82 in the context of the Juries Act. My understanding is that section 82 amends the First Schedule of the Juries Act by inserting what is clearly, in our interpretation, a mistaken provision that a person is ineligible to serve as a juror if he or she does not, in the opinion of the court, have sufficient mental or intellectual “incapacity”. That is the wording that is there, although it may have been corrected in the intervening period. I wonder should we be substituting “capacity” for “incapacity”.

The issue may have been spotted by the Minister and his team already; I am just putting it on the record.

I was about to note that we will bring forward a Report Stage amendment to change that typo.

We have amendments to this section. Amendments Nos. 34 and 35 are related and will be discussed together.

I move amendment No. 34:

In page 62, to delete lines 28 and 29 and substitute the following:

“ “A person who fulfils the criteria for detention under the amended Act to the 2001 Principal Act and is resident in an approved centre for mental health treatment.”.”.

The current definition of a person prohibited from jury duty in the principal Act is a person who suffers or has suffered from mental illness or mental disability and, on account of that condition, either is a resident in a hospital or other similar institution or regularly attends for treatment by a medical practitioner. That is an extremely broad definition that excludes a large number of citizens with mental health difficulties. Under that definition the person could be in recovery or be seeing his or her medical practitioner regularly in order to stay in recovery yet the person is still deemed prohibited from or not eligible for jury duty. The Act on one hand extends the right to sit for jury duty to a cohort of people with one type of disability - for example, blind people will be included in this - while, on the other, denying the rights of another cohort of people with disabilities, once again pitting physical and mental health against each other rather than ensuring parity.

I know people who are long term under the care of a medical practitioner for mental ill health, who are in recovery and who are well able to sit for jury duty. This section prohibits them from doing so.

Amendment No. 35 addresses both the problematic language and the intention in the Bill. While updating of the Juries Act 1976 is welcome, the current wording needs to be improved. It needs to be amended. We presume when the Bill refers to mental or intellectual incapacity rather than capacity that that is a typo, as Deputy Sherlock mentioned. However, even the language "mental or intellectual capacity" is inconsistent with the 2015 Act, which deliberately does not include any reference to specific cognitive impairments. Disabled Women Ireland has pointed out that this type of language focuses on the person's impairment and how it may be difficult for them to participate. It does not recognise or place any onus on the State or the Courts Service to reasonably accommodate them to participate. Similarly, Joe McGrath, committee member of the National Platform of Self Advocates, summed it up so well when he said people with intellectual disabilities should not be ruled out of being on a jury just because someone thinks they cannot understand what is happening in court. The Bill presents a paternalistic and medicalised model of disability. It focuses on incapacities rather than putting forward progressive laws and associated supports to assist disabled people to participate in juries. This amendment replicates the approach proposed in the Law Reform Commission's 2013 report and was suggested by the Centre for Disability Law and Policy, NUI Galway, during pre-legislative scrutiny.

Amendments Nos. 34 and 35 both seek to change the form of wording referring to a potential juror. It is worth stating that the policy of and legislative responsibility for the Juries Act 1976 rests with the Minister for Justice, and the relevant section of the amended Bill has been brought forward jointly by me and the Minister for Justice. Section 82 of the Bill was introduced to remove the prohibition on persons serving on a jury who, in the problematic word of the then section, has or had a mental illness or disability and is receiving medical treatment or is a resident in a hospital or similar institution. The intention of the Bill is that capacity to sit on a jury be assessed on a functional capacity basis. The proposed amendment No. 34 seeks to replace the wording introduced in this Bill. The amendment proposes to make a person ineligible for jury duty if he or she meets the criteria for detention under the Mental Health Act 2001 and is resident in an approved centre. Amendment No. 35 proposes to make all persons in hospitals or similar institutions by reason of ill health ineligible for jury service, where additional supports will be inadequate to facilitate the role of juror. While I recognise the goal of the amendments, I do not believe they are practicable in the context of the Juries Act and I think their wording is problematic. Amendment No. 34 runs contrary to the operation of the functional capacity test, whereby the ability to sit on a jury, even for someone receiving treatment under Part 4 of the 2001 Act, should be assessed in a manner presuming capacity and that is time-bound and context-bound. Similarly, the supports alluded to in amendment No. 35 are part of the broader operation of the functional test, whereby people's decision-making capacity will be facilitated and supported to the greatest extent possible. In fact, amendment No. 35 could have the unintended consequence of potentially disqualifying a person on grounds of physical health where no such provision currently exists or is desired. All persons should be eligible for jury service where the court is satisfied that they have capacity to fulfil the duties of a juror, which warrants the use of the functional capacity test to allow the court to assess their eligibility at the time of service. For those reasons I cannot accept this pair of amendments.

Amendment put and declared lost.

I move amendment No. 35:

In page 62, to delete lines 28 and 29 and substitute the following:

“ “A person who, arising from his or her ill health, is resident in a hospital or other similar health care facility or is otherwise (with permissible and practicable decision-making supports and reasonable accommodation consistent with the right to a trial in due course of law) unable to perform the duties of a juror.”.”.

Amendment put and declared lost.
Section 82 agreed to.
Section 83 agreed to.
SECTION 84

I move amendment No. 36:

In page 63, to delete lines 2 to 42, to delete page 64, and in page 65, to delete lines 1 to 6.

The rationale for removing section 84(1) is that it unnecessarily singles out the National Disability Authority, NDA, as it already has the power to share information with IHREC and it would be more appropriate for IHREC to engage directly with disabled people at grassroots level. Section 84 amends the National Disability Authority Act 1999 to add specific recognition of the NDA in supporting IHREC to perform its functions as proposed in this section. This is unnecessary as the NDA's existing legislative functions already allow for the sharing of information, including statistical data, with public bodies such as IHREC. It would be more appropriate to amend the IHREC Act to create an obligation on IHREC to engage meaningfully with disabled people directly rather than the NDA as a public body in order to obtain information and advice as to how the rights of disabled people are being impacted as grassroots level. IHREC has already taken steps to achieve this, including through the creation of its disability advisory committee, but further direct engagement with disabled people would be more appropriate in this context than providing legal recognition for the role of the NDA. The Joint Committee on Children, Equality, Disability, Integration and Youth has also called for such an amendment to ensure wide consultation with the disability community. That was pre-legislative scrutiny recommendation No. 64.

Before I address the Deputy's amendment, I wish to say I may table further amendments to this section to deal with the pension provisions of staff of the NDA. These are being discussed with the Department of Public Expenditure and Reform at the moment.

Amendment No. 36 proposes to delete section 84 of the Bill in its entirety. This section makes amendments to the National Disability Authority Act 1999. I wish to split this up into two elements. The first element results in maybe a misinterpretation of what is being attempted here, and this came up in quite a few of the Second Stage speeches. Section 84(1)(a) a provides that the NDA will be obliged to provide advice and statistical information to IHREC in the conduct of IHREC's role as the national monitoring body for the CRPD. A decision has been made that IHREC will be the monitoring body. All this section seeks to do is to facilitate the disability support service, DSS, to be able to give them information. There was some suggestion that the provision obliges IHREC to engage in consultation with the NDA at the expense of persons with disabilities or disabled persons' organisations. That is an incorrect interpretation of this provision. The actual effect is to oblige the NDA to assist IHREC with the provision of expert advice and statistical data.

It is not a consultation provision and it certainly does not imply any exclusivity in terms of consultation. Both the Irish Human Rights and Equality Commission, IHREC, and the National Disability Authority, NDA, can, should and do engage in extensive consultation with persons with disabilities. We have discussed some of that issue with the NDA's disability support service, DSS, already. I propose to bring forward a provision to offer greater guidelines there. However, I want to stress that a change to the scenario is neither the intention nor the legal effect of this provision. The deletion of this provision is undesirable, because this provision, as drafted, will assist IHREC in performing that body's functions. It will allow the NDA to do that.

In addition, amendment No. 36 proposes to delete the remainder of section 84 of the Bill. It is not clear to me what is objectionable in the remainder of section 84. This section provides that the staff of the National Disability Authority will become civil servants of the State. It sets out the necessary technical amendments for that to occur. Staff of the NDA are currently public servants, so the proposed change is a largely administrative one. It will introduce administrative efficiencies and savings from a HR perspective. I do not see what is objectionable about that. I hope I have clarified this about the first part of section 84. As well as this, if I were to delete the rest of section 84 on the NDA, there would be an impact on NDA employees. Therefore I cannot support this amendment.

Does the Deputy want to add anything else?

Amendment, by leave, withdrawn.

Amendment No. 37 has already been discussed with amendment No. 3 and is in the name of Deputy Sherlock.

Can I speak to that amendment?

It has already been discussed in the second grouping.

That was so long ago.

I move amendment No. 37:

"In page 65, line 2, after “subsection (8)” to insert the following:

“and, in so doing, to have particular regard to its obligations under Articles 4(3) and 33(3) of the Convention”."

Amendment put and declared lost.
Section 84 agreed to.
SECTION 85

Amendments Nos. 38 to 40, inclusive, are related and may be discussed together. They are all in the name of Deputy Ward.

I move amendment No. 38:

"In page 65, line 23, to delete “3 per cent” and substitute “5 per cent”."

The targets in this legislation are low. The targets that I have set out are still low. I admit that they are still low, although they are a bit more ambitious. I deliberately set them low in the hopes that the Minister might move on these. It is important to raise the bar on employment targets for people with disabilities. The targets that I set out here are tangible and achievable. I am not looking to reinvent the wheel in this amendment. Disabled people deserve better. For example, a move from 3% to 5% is not a big move. It is still low, but it is a target that could be moved on.

This is the same issue that arises in amendments Nos. 39 and 40, which include a small percentage move.

It is important that we set out where the targets for employment of persons with a disability within the public sector come from. Right now, the target is 3%. We are meeting that target. We are at 3.1% across the public sector. These numbers will get us to 6% by 1 January 2025. They have not been pulled out of the air. They have been set out in the comprehensive employment strategy, CES. I think that the CES document was introduced in 2015. The State has been working to this document's policies to increase the number of people with a disability who are in employment generally, and not just in the public service. One of the elements of the CES was to take the existing statutory requirement of 3% and to increase that to 6%. The CES sets out steps to achieve that. The percentages that Deputy Ward has set out do not have the strategy and the plan set out in the CES to achieve them. I do not think that we could achieve them. We will be pressed to get to the 6% by the start of 2025 as it is. While ambition is important, I do not believe in setting unachievable numbers just for the sake of doing so. If we get to 6% by the start of 2025 we will have doubled the percentage of people who are employed in the public sector. That will be a positive development. We can look to grow it further, as I think we should. Whoever is in this role at that stage will hopefully do so. The figures that are in the Bill are figures that are based on the comprehensive employment strategy. That is the strategy everyone is working towards. The Minister of State, Deputy Rabbitte, has been very engaged in it. She and I met with the chair of the comprehensive employment strategy, Fergus Finlay, just last week. We discussed the sustained efforts that need to be made to increase the employment rates of persons with disabilities generally, as well as in the public service. I think that it is going to be tough to get the figures that are set out in this Bill. I will be working very hard towards them, as will my Department. I want to see the entire public infrastructure do so. However, we will be pushed to get to 6%. I do not believe that setting a higher target will change that fact.

My argument then would be that the fact that they will be pushed to get the targets that have been set out indicates that the current strategy is not working. They will struggle to reach 6% by 2025. It is my understanding that designated public officials, DPOs, and non-governmental organisations, NGOs, are not happy with the percentage of the targets. They are happy with the percentage targets that I have put forward in my amendments. As I said, I did not try to reinvent the wheel. I did not try to go very far. These are small percentages. I know that the Minister is struggling, as he said, to reach the 6% figure. To me, that says that the strategy itself is not working, if they will struggle to get to the figure of 6% by 2025. I will move and press all of these amendments.

Amendment put and declared lost.

I move amendment No. 39:

"In page 65, line 26, to delete “4.5 per cent” and substitute “7.5 per cent”."

Amendment put and declared lost.

I move amendment No. 40:

"In page 65, line 28, to delete “6 per cent” and substitute “10 per cent”."

Amendment put and declared lost.
Section 85 agreed to.
Section 86

Amendment No. 41 has already been discussed with amendment No. 36.

I move amendment No. 41:

"In page 66, between lines 2 and 3, to insert the following:

“(hb) in the performance of its functions as the independent monitoring mechanism under the Convention, to ensure extensive and meaningful engagement with all persons with disabilities in the State, in accordance with Articles 1 and 4(3) of the Convention.”.”"

Amendment put and declared lost.

Amendments Nos. 42 and 43 are being discussed together. I call Deputy Ward first to discuss amendment No. 42. He will be followed by Deputy Whitmore, who will discuss amendment No. 43.

I move amendment No. 42:

"In page 66, line 15, to delete “at least half” and substitute “two-thirds”."

Amendment No. 42 is to delete "at least half" and to substitute the words "two thirds". This Bill provides clarity on the role of IHREC's disability advisory committee. Given Ireland's obligation under articles 4.3 and 33 of the CRPD, it would be more appropriate to increase the required proportion of disabled people on the committee from half, as is currently in the Bill to two thirds of its membership. This still allows for members of other interested stakeholders and allies, including family members of disabled people, while ensuring that disabled people remain in the clear majority on the committee.

Our amendment relates to the same measure. It comes back to the issue of "nothing about us without us". It is important to have people who have lived experiences actually inputting into these policy discussions. This is a simple and small measure and it could have a huge impact. I would ask that the Minister consider the amendment.

Amendments Nos. 42 and 43 are the same. They propose that two thirds of the IHREC advisory committee would be comprised of persons with disabilities. The role of this committee is to assist IHREC as part of its function in the monitoring of the implementation of the UNCRPD in the State.

Section 86 of the Bill currently requires that at least half of the persons appointed to the committee must be persons with disabilities. Noting that current provision already ensures significant representation of disabled persons on the committee, it is important to allow the Irish Human Rights and Equality Commission, IHREC, a measure of flexibility in identifying members with a full range of skills and expertise to support it in its functions. It is intended that the expertise available would come from a range of sources and that the current provisions of the Bill will already ensure that the majority of that expertise comes from experts by experience. I am not proposing to make a change on this provision.

Amendment put and declared lost.

I move amendment No. 43:

On page 66, line 15, to delete “half” and substitute “two-thirds”.

Amendment put and declared lost.

I move amendment No. 44:

In page 66, lines 16 and 17, to delete “have had, a disability within the meaning of section 2(1) of the Disability Act 2005.” and substitute the following:

“be persons with disabilities within the meaning of Article 1 of the United Nations Convention on the Rights of Persons with Disabilities.”.

Amendment put and declared lost.
Section 86 agreed to.
Section 87 agreed to.

I wish to also discuss potential amendments that are not directly related to existing sections, if that is all right.

That is okay.

An amendment is being worked on in relation to the interaction between the nursing home support scheme and the 2015 Act. It is necessary to clarify the relationship between a care representatives and a decision supporter. My officials are liaising with counterparts in the Department of Health and the Office of the Attorney General on that. This is in response to a number of amendments that were ruled out of order. Following agreement between the Minister for Justice, Deputy Helen McEntee, and me, I will bring forward an amendment to the issue of the provision of legal aid under Part 6 for this and other relevant sectors to ensure that legal aid is available for wards exiting wardship under Part 6 of the Act. This will give existing wards the same supports as persons making new decision support applications.

The Department of Health has advised my Department that amendments may be necessary to assist with the creation of a register for advanced healthcare directives. If this proves necessary I will move the required amendments.

With regard to transitional arrangements for ongoing wardship applications, I intend to amend section 56 of the 2015 Act to provide for transitional arrangements. In the run-up to the commencement of 2015 Act, concerns have been brought to my attention from practitioner organisations and the HSE that provisions for persons who have been subject of wardship applications that have not completed prior to the commencement of the Act are desirable. These would ensure continuity of care and avoid additional expense. I will bring amendments to address these cases, and ensure that these applications can be processed to completion after the commencement of the Act, and that as part of these proceedings an exit date from wardship is also set up for such persons.

I will bring additional amendments to section 4 of the 2015 Act following preparation for commencement. I have been advised by the Courts Service that it would be desirable to clarify the operation of the Circuit Court in the context of geographical location and emergency applications.

I will also bring an amendment to clarify the operation of the inherent jurisdiction of the High Court in relation to the Act.

I thank the Minister. Before we conclude, the committee has been contacted by a group with a request to outline some supports for people who may be affected. They can contact www2.hse.ie/mental-health. We just want to make this known to people who may be watching these proceedings.

I thank the Minister for his time, his officials for being here with us, and all of our committee members for their contributions and amendments.

Title agreed to.
Bill reported without amendment, received for final consideration and passed.
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