Ms Sonya Felton:

The Assisted Decision-Making (Capacity) Bill is an historic step forward for the rights of people with disabilities and people with mental health difficulties. Fundamentally, the legislation will remove the all or nothing situation which exists, whereby a person either has full capacity or is deemed not to have capacity and becomes a ward of court. Being a ward of court means one is no longer a person before the law, one loses one's self-determination and decisions about one's life are made by a court rather than with the support of family and those one interacts with every day. People, their families and service providers have often been loath to raise their heads above the capacity parapet, fearing the ward of court process. Instead they have muddled along, attempting to find a way around decisions, making decisions in a legal lacuna or simply not making decisions.
The Bill will therefore substantially improve the position of people with disabilities in Irish society and demonstrate Ireland's commitment to Article 16 by creating a system where all individuals are recognised equally as a person before the law. It is imperative that this is implemented fully and effectively. This will require active education and training of professionals, public information sessions, informative and easily accessible publications and guides and specific supports of individuals. There are some good models in use in other jurisdictions.
Organisations such as RehabCare and others have been campaigning on this issue for many years, and we will be happy to support people in our services to understand the new systems. There is considerable expertise in this sector and this should be utilised by the Department in overcoming some of the barriers to implementation.
Part of the difficulty in ensuring public understanding in the complex areas of decision-making is confusion about what is not included in the Bill. Section 106 specifically excludes important areas of people's lives including marriage, sexual relations, voting in an election or a referendum, participation on a jury, divorce, dissolution of a civil partnership, placing a child for adoption and guardianship issues. This will prevent people accessing the supports they need to make decisions in these areas. While law reform is planned it is unclear when this will happen, and it is inequitable that people with disabilities will have to wait even longer for clarification of their rights in these areas.
Two of these areas are relevant to Ireland's performance under Article 14 of the International Covenant on Civil and Political Rights, ICCPR, which requires that all persons shall be equal before the courts and tribunals. There are three distinct areas where reform could significantly improve Ireland's performance in this area. The Disability Act 2005 requires public service providers to deliver services and information which are accessible to people with disabilities. The Irish legal system does not always discharge this responsibility effectively for those whose capacity may be in question. In practice there have been instances where individuals with reduced capacity have not been given effective supports to give evidence at a trial and it has been found they do not have capacity to do so. In one well-reported case, a young woman with Down's syndrome was deemed incompetent to testify in a case of sexual assault and the case was dismissed. Effectively, the person against whom the accusation of assault was made did not undergo trial because the case involved the assault of a person with an intellectual disability. This is a very unfortunate situation which queries our society's ability to deter crimes against people with disabilities. Greater awareness and facilitation of the needs of people who have difficulty understanding is required within the legal system.
Another area where action is required is section 5 of the Criminal Law (Sexual Offences) Act 1993 which effectively criminalises two people who are defined as "mentally impaired" and who engage in sexual intercourse. As a society we absolutely need to protect people with disabilities and mental health difficulties from sexual exploitation but for a person to be guilty of a crime because of an action of theirs, which another person without a disability can take freely, and which for other people is part of their fundamental rights and freedoms but which for a person with a disability is a crime solely by virtue of having a disability, is unacceptable. The Law Reform Commission has published proposals for this area of law and these should be fast-tracked to complement the Assisted Decision-making (Capacity) Bill 2013.
The law on sexual relationships for people with disabilities has far-reaching impacts on attitudes and on the supports people receive regarding relationships, sexual and reproductive health and sex education. For example, we are aware of two women with intellectual disabilities who last year went to take part in the State's cancer screening programme, CervicalCheck, but were turned away on a presumption they were not sexually active without ever being asked whether this was the case. Ireland should not delay in its resolution of this issue as it is clearly at odds with our responsibilities under Article 14 and Article 23, which provides for the rights of the family, of the ICCPR.
Another area where action is required is with regard to jury participation. There is an opportunity to ensure greater representation of people with disabilities in the legal system through participation in juries. The Law Reform Commission has proposed reform in this area stating "a person with a disability should be eligible for jury service unless, taking account of permissible and practical assisted decision-making supports and accommodation that are consistent with the right to a trial in due course of law, the disability would mean that he or she could not perform the duties of a juror". The relevant legislative steps should now be taken to implement this recommendation.
I will briefly sum up our written submission to the committee. There are steps that the Government should take as soon as possible to ensure we are compliant with the ICCPR, but most importantly because they will improve the lives of and opportunities available to people. These include finalisation of the Assisted Decision-Making (Capacity) Bill 2013; reform of the law on sexual relations for people with disabilities; clarification of the legal position of people with intellectual disabilities voting in an election or a referendum; and enabling people with disabilities to participate in juries and take a greater part in public affairs. Many of these issues can be resolved by new legislation followed by cultural and attitudinal change which will significantly improve the opportunities that people with disabilities can experience in our communities.