Professor Eilionóir Flynn:

There are a few points that we did not get a chance to discuss in more detail that I wish to raise for the committee's further consideration. One is the amendment proposed in the Bill regarding the inclusion of disabled people on juries. We believe the language needs to be strengthened here and we explained how we believe it should be strengthened in our full submission. We are happy to make that available to anyone who would like to view it. In particular, we are concerned that there is a proposal, which was passed in the Disability (Miscellaneous Provisions) Bill in the previous Dáil, but this is not the previous Dáil and there is an opportunity to be more progressive now. It still includes language that singles out people with mental or intellectual disabilities when, in fact, the Assisted Decision-Making (Capacity) Act does not use any cognitive impairment descriptions in its text. We feel that is not compatible with the spirit and purpose of the 2015 Act and we would like that to be changed. I reiterate that for the consideration of the members of the committee.

Another issue we did not get a chance to talk about more is the provision relating to cases under the Act being heard otherwise than in public. Again, there is the proposal to change the Act's stance from what it was in 2015, which was that all cases should be heard otherwise than in public. The proposal in the amendment is to remove that so that all cases may be heard in public. We would like more clarification in the language here to ensure that the decision about whether a case is heard in public or otherwise than in public is taken primarily based on what is in the will and preferences of the relevant person. There may be situations where the person would wish the case to be heard in public but, equally, there may be situations where it would be very important for the person for the case to be heard otherwise than in public. We would like further consideration on that.

The final matter is bureaucratisation of support, on which there has been some discussion. We all want the Act to be successful. We all want disabled people, older people and people who experience mental health services to be able to use this legislation in a way that gives them greater autonomy and greater control over their lives. That was the intention when the legislation was drafted. To that end, we believe there may be a need for a further alignment with the Act of the draft codes the DSS is developing to move away from an approach to assessment of capacity that suggests that assessments of capacity can be conducted by a person who encounters the individual in a bank or a doctor's office or any other setting. Nobody wants to bring matters to court unless they need to be there but, at the same time, if we are talking about not respecting an individual's will and preferences based on somebody's assessment of the person's capacity, I would certainly prefer, if it was me, that a judge had overseen that and actually declared me to lack capacity before somebody was empowered to make a decision on my behalf, rather than somebody assessing my capacity in a community setting, perhaps on a bad day or perhaps without the relevant expertise, and making a decision to refuse to respect my will and preferences on that basis. It is very important, in keeping with the spirit and purpose of the Act as drafted and in compliance with the UNCRPD, that we try to get that clarity into the codes of practice, which will be the first port of call for many people trying to understand what their obligations are under the legislation.

I leave that on the table as a final contribution from us.