Ms Carol Baxter:

I thank the Chairman and members for the invitation to speak to them regarding the pre-legislative scrutiny of the general scheme of the Bill. As members will be aware, the Bill is intended to amend the Assisted Decision-Making (Capacity) Act 2015 to address issues that have arisen since its enactment and which must be rectified or removed before it can be commenced.

Commencement of the 2015 Act will enable a fundamental change of the law on decision-making capacity to be brought into effect, which will abolish wardship and provide persons with capacity difficulties, known as relevant persons, with access to new decision support options that are required to respect that person’s decision-making autonomy to the greatest extent possible. Once the DSS becomes operational, people with capacity difficulties will have access to the agency mandated to enable them to avail of these new decision support options.

The process of preparing for the DSS to become operational has enabled a critical review of the 2015 Act to be undertaken, identifying provisions which would operate more effectively if amended or which go counter to the objective of safeguarding the rights of the relevant person. The new system for enduring powers of attorney, for instance, under which the relevant person registers the power while she or he has capacity, is intended to give the relevant person control of the process, including being able to resolve any questions in relation to the power rather than leaving them to an attorney when the relevant person has already lost capacity. The DSS is being given powers, for instance, to specify certain matters such as in relation to the forms to be used when people are applying to establish, vary or revoke one of the decision support options. This will allow it the flexibility to change forms as needed, including where statutory requirements change under other Acts. It will also be able to provide services digitally.

The 2015 Act addresses challenging policy matters. While the provisions on restraint were intended as restrictive, limiting the use of restraint in private settings to exceptional situations, we have been advised by a range of stakeholders that these provisions might be interpreted instead as permissive. Accordingly, the general scheme proposes to remove these provisions from the 2015 Act.

The provisions on wardship proposed in the general scheme are designed to strengthen the protections for wards as they go through the process of being discharged from wardship or moved to the new decision support options. Safeguards are also being strengthened where a decision supporter abuses his or her position. The general scheme provides for the director to apply to the court for an order temporarily prohibiting someone from acting as a decision-making supporter pending the outcome of an investigation where there is a risk that the decision support might deplete the relevant person’s assets or pose harm to that person. The general scheme also provides for an offence of ill-treatment or wilful neglect of a relevant person by a decision supporter and for persons convicted of such offences to be disqualified from acting as decision supporters. This is a complex area requiring careful deliberation. It is not possible for the general scheme to address all the issues which arise in such a fundamental reform of the law on capacity. The safeguards that will apply where a person is deprived of his or her liberty will be the subject of separate legislation, which is currently being prepared by the Department of Health.

The Bill is also intended to enact key provisions of the Disability (Miscellaneous Provisions) Bill 2016, which lapsed at the dissolution of the Houses before the latest election. These provisions include giving IHREC a statutory mandate for its role to oversee implementation of the UNCRPD and for the National Disability Authority, NDA, to support this process. It also provides for the incremental doubling of the percentage of people with disabilities employed in the public service from the current 3% figure to 6% by 2024. This is a key measure to increase employment opportunities for people with disabilities in line with the objectives of the comprehensive employment strategy for people with disabilities, the third action plan of which is currently being finalised for 2022 to 2024.

The general scheme proposes to amend the Electoral Act 1992 to remove the prohibition preventing persons "of unsound mind" from standing for Dáil elections. It also proposes to amend the Juries Act 1976 to enable people with specified disabilities to serve on juries. This will open the door for more visible and meaningful representation and civic participation for persons experiencing capacity difficulties and for people with certain disabilities. It represents key progress in further realisation of the UNCRPD, in particular of Article 29.

In conclusion, the Bill is intended to support the reform of the law on capacity. We look forward to the joint committee’s report on the general scheme and to enactment of this important Bill at the earliest opportunity.