Dáil debates
Wednesday, 22 February 2023
Saincheisteanna Tráthúla - Topical Issue Debate
Legislative Measures
9:32 am
Thomas Pringle (Donegal, Independent)
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It is a good job I was in a wee bit early.
It is more than a year since the rushed, two-day pre-legislative scrutiny process relating to the general scheme of what became the Assisted Decision-Making (Capacity) (Amendment) Act 2022 took place. On 15 and 16 February 2022, the Joint Committee on Children, Disability, Equality, Integration and Youth heard from key stakeholders, including disabled people, on the provisions in the proposed Bill. At the time, there was significant concern from disabled people about the inaccessible and rushed nature of the pre-legislative scrutiny process; about the lack of easy-to-read documentation detailing the changes to the Assisted Decision-Making (Capacity) Act 2015; and about the lack of consultation with disabled people themselves. At the time, we were told that there was a deadline for commencement in June 2022 and that there was a court case on hold, pending the commencement of capacity legislation. That deadline was extended, which was welcome, as the Seanad and the officials at the Department of Children, Equality, Disability, Integration and Youth considered amendments.
The Assisted Decision-Making (Capacity) (Amendment) Act 2022 was finally signed into law by President Michael D. Higgins on the 17 December. One would think that by now, almost in March 2023, people would be realising their rights to have presumed capacity and decision-supports rather than decisions being made for them or being made wards of court. One would think that but, unfortunately, it would not be true because we are still waiting for the full commencement of the 2022 Act and the 2015 Act. That is utterly unacceptable.
If we take a step back, eight years ago to be precise, the Assisted Decision-Making (Capacity) Act 2015 was signed into law. It was seen to be progressive, person-centred and a move away from the paternalistic control exerted over some people's decisions. The 2015 Act was to make Ireland compliant with human rights obligations - in Bunreacht na hÉireann as well as in international conventions. Wardship was to be abolished. The Decision Support Service, DSS, was to be set up. People were to be presumed to have capacity in decision-making. Health and social care workers were going to be expected to take all practical steps to assist a person in making a decision for themselves. Capacity assessments were to be used as a last resort. A person's will and preferences was to be respected. Advance healthcare directives were to have legal standing.
Older people, disabled people and all people with decision-making support needs waited patiently for full commencement and they are still waiting. Since the 2015 Act was signed into law, Ireland has ratified the UN Convention on the Rights of Persons with Disabilities, UNCRPD. On 7 March 2018, the Dáil passed the motion for the ratification of the UNCRPD. We are approaching the fifth anniversary of ratification.
The original Act was passed eight years ago, but people are still being taken into wardship, still not having their will and preferences respected and still left in limbo about when this legislation will come into effect. How is that fair?
That is not to say the legislation is perfect, fully United Nations Convention on the Rights of Persons with Disabilities, UNCRPD, and human rights compliant. It certainly is not. The Opposition tabled many amendments last year to try to improve the legislation. One example is the amendment to extend provision to people with mental health difficulties. A small compromise was reached on that matter, but 16 and 17 year olds are still excluded from the provisions which is completely contrary to the State's obligations and commitments under the UN Convention on the Rights of the Child. When will the Act be fully commenced? Will the Minister give a date at some point in the near future that will allow everyone to prepare for the coming changes? Why is it taking so long especially as the Government had self-imposed tight timeframes which distressed some people and excluded some people from taking part in the process? The timeframes were given as a reason for not accepting Opposition amendments? Now everyone is still sitting around unsure as to when their will and preferences will be legally upheld. It needs to make sense.
9:42 am
Roderic O'Gorman (Dublin West, Green Party)
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I welcome the opportunity to address the House today on this issue. The Assisted Decision-Making (Capacity)(Amendment) Act 2022 was signed into law on 17 December 2022. It paves the way for the commencement of the Assisted Decision-Making (Capacity) Act 2015. This legislation will bring about major reform in Irish society. It will have a significant impact on those who lose or have lost capacity to make decisions that impact on their lives. The existing law on capacity will be changed from the status approach of the wardship system to a flexible functional approach whereby capacity is assessed on an issue and time-specific basis. Commencement of the 2015 Act will abolish the ward of court system for adults by repealing the Lunacy Regulation (Ireland) Act 1871. Adults who are currently in wardship will transition to the new decision-making support arrangement on a phased basis over three years from the date of commencement. Wardship will be replaced by a new model of tiered decision-making supports for persons lacking capacity to ensure they have the necessary assistance to make important everyday decisions.
The 2022 amendment Act addresses a number of issues identified as part of the original commencement process. Many of the amendments are technical in nature and focus on streamlining processes in the interests of those using the Act. The changes will allow the Decision Support Service to undertake its role more effectively and will reduce the administrative burden under the 2015 Act. Amendments will also improve safeguards for those making decision-support arrangements and further enshrine the concept of will and preference within the 2015 Act.
Separately, the 2022 Act has been used to progress certain provisions formerly included in the Disability (Miscellaneous Provisions) Bill 2016 which lapsed at the dissolution of the last Dáil. These include measures for closer compliance with the UNCRPD, doubling the target for the employment of persons with disabilities in the public service from 3% to 6% and a range of other measures. Following the passing of the 2022 Act a number of statutory instruments must be signed into law. They include five separate sets of regulations which must be drafted in advance of the commencement. I can confirm that my officials are currently engaging with the Office of the Parliamentary Counsel to progress the necessary statutory instruments. That drafting work is under way. There is a recognition that commencement of the 2015 Act will lead to a direct increase in applications being made to the Circuit Court, particularly in terms of Part 5 decision-making representative applications. With this in mind, I recently commenced a specific provision in the 2022 Act, providing for an increase in the number of judges who can be appointed to the Circuit Court to ensure sufficient resources are available to manage the increased workload associated with the commencement of this legislation.
The Decision Support Service, which is the organisation that will operate the 2015 Act, will respond to the complex decision-making needs of persons with capacity difficulties. The preparations of the Decision Support Service have gone well and it is currently finalising its progress for the commencement of the Act. Significant work is also under way in the HSE and the Courts Service in preparation for commencement. Each of these organisations is also undertaking awareness-raising and training within their respective remits. A high-level steering group, chaired by my Department and comprising senior officials from relevant Departments and organisations, is overseeing the final preparations in advance of commencement of both the 2022 Act and the 2015 Act. The completion of the above preparations will provide a pathway to commencement and I expect to make an announcement on full commencement at the earliest possible opportunity.
The Government recognises the importance of the much-needed and long-overdue reform the Act represents and remains committed to commencing the 2022 Act and implementing the 2015 Act in the near future.
Thomas Pringle (Donegal, Independent)
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Unfortunately, the Minister’s response lacks any definitive dates on when people can expect this Act to come into being. At this stage, and given the fact the 2015 Act has been passed and the Bills had to be rushed through the Houses, it is sad that people cannot have a date they can work towards to ensure they can be ready for the Act coming into being. This Act will make a huge difference to people. The Minister and I can make mistakes. We are allowed to do so and to make our own decisions in relation those mistakes, but these people are not. They should be recognised as having capacity to do so. The UN has said they should and our Constitution probably also states they should. We need to step up and make that happen.
I note that in his response the mentioned that he recently commenced a specific provision of the 2022 Act providing for an increase in the number of judges. Have they been appointed? Are they in place yet? That will obviously be a delay and appointing people and staff is probably the main delay at the moment. This Act was known about. People have known for years that this Act was coming in. When the legislation was going through this House, it was rushed through and the Minister said we had to get it done. All these organisations have had to sit on their hands since, waiting for the commencement notice or whatever to be made. That is simply wrong.
Will the Minister address whether all sections of the Act will be implemented and commenced at the same time? We have seen across all Departments that large parts of Acts that have been rushed through and passed, sit uncommenced for years. That is simply wrong and I am afraid it could happen with this Act as well.
Roderic O'Gorman (Dublin West, Green Party)
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We have had a discussion before about the Deputy's assertion that the Act was rushed. We took longer because of issues Deputy Pringle and other Deputies raised.
Thomas Pringle (Donegal, Independent)
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I had to raise them.
Roderic O'Gorman (Dublin West, Green Party)
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The Deputy wanted more time and we gave more time. We tabled amendments and changed the Act. The Deputy said it was not a perfect solution but it was a significant change. That must be recognised. The reason this is behind is that I listened to what Deputies said and took additional time. The Government could have decided to rush it through before the summer recess - it had the numbers - but it did not. We responded and made changes accordingly. It is important that be recognised.
We have commenced the provision on the appointment of the Circuit Court judges, which will address the needs of new people entering the system, and the appointment of decision-making representatives. The Minister for Justice and I discussed this in recent weeks. They have not been appointed yet but the Judicial Appointments Advisory Board, JAAB, process for the appointment of these Circuit Court judges is in operation and I hope to see them appointed soon. Five quite complex sets of statutory instruments must be enacted to ensure this works. They are being drafted at the moment. They had to reflect the final draft of the legislation.
I appeared before the Joint Committee on Disability Matters a number of weeks ago and made a commitment that, once I had a clear sense of when each of the five statutory instruments will be ready, I would write to it and set out how we propose to progress the commencement of the Act. It is my intention that we commence all elements. I am aware the 2015 Act has lain uncommenced for seven or eight years and that is not what I want to see. I want to see this system to be operational and fully running.
I do not have a specific date today. I believe I will have one in the next two or three weeks. I will write to the Joint Committee on Disability Matters as I have made a commitment to inform its members and I can copy the Deputy in that correspondence as I know this issue is of interest to him.
Thomas Pringle (Donegal, Independent)
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The key issue is to have a date for implementation. I acknowledged in my opening statement the fact the Minister delayed the introduction of the Bill due to the concerns of the Opposition. However, even with that delay built-in, did the Government sit on its hands and wait for legislation to be passed? A lot of things could have been done to get this implemented. People are waiting for this. I know the Minister is aware of that and that he is concerned about it, but people have been waiting a long time. They have watched this process taking place but they do not know what is happening. I urge the Minister to forward the correspondence to me as well, if he does not mind. I would appreciate that as it is important.
I realise the Minister wants commencement to happen but all the legislation should come into effect urgently. Too often we see legislation passed without its being commenced. That is a big problem.
The Opposition has problems in that the legislation does not go far enough. That was fleshed out during the scrutiny process. To see how the arrangements will operate, we need all the legislation enacted and people to be able to avail of the services and determine what they can actually get. I look forward to it. I hope that, before too long, the Minister will announce a date and that we will see progress.
9:52 am
Catherine Connolly (Galway West, Independent)
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I think Deputy Pringle benefited from the fit of coughing with extra time.
Thomas Pringle (Donegal, Independent)
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I was keeping a very good eye on the time.