Oireachtas Joint and Select Committees

Thursday, 10 November 2022

Joint Oireachtas Committee on Disability Matters

UNCRPD and the Optional Protocol: Discussion

Photo of Holly CairnsHolly Cairns (Cork South West, Social Democrats) | Oireachtas source

In discussing the importance and necessity of ratifying the optional protocol of the CRPD, this committee has heard several times from experts that the Government could at any time ratify it and has delayed the process unnecessarily. The Assisted Decision-Making (Capacity) (Amendment) Bill 2022 was used as the excuse for this. The Bill has taken considerably longer than planned; the Minister intended for it to be complete in July and commenced this month, with the acceleration preventing proper scrutiny of the Bill. The proposed commencement date is now January, but there is no guarantee of that. Disabled people and their advocates have been waiting years for both the ratification and the assisted decision-making legislation. These delays are impinging on people's rights every day. It is important to note that.

The codes of practice will be an important document that shapes the lives of disabled people and others who require support in decision making. Will the DSS outline what direct engagement it has had with disabled people's organisations, DPOs, concerning the drafting and revising of the codes? Witnesses before this committee have outlined that their involvement has been limited and resisted in some cases. The DSS website states that it is working towards having the codes of practice available in mid-June; five months later, when can we expect them to be published? Where is the delay? Is it with the DSS or with the Minister's office?

The draft codes make reference to the functional test of capacity, which Ms Flynn touched on. This approach results in substitute decision making, rather than supported decision making. The functional test of mental capacity was found to be contrary to the CRPD, subjective and biased in assessment. General comment No. 1 from the UN Committee on the Rights of Person with Disabilities states: "The functional approach attempts to assess mental capacity and deny legal capacity accordingly ... Article 12 does not permit such discriminatory denial of legal capacity, but rather requires that support be provided in the exercise of legal capacity." Will Ms Flynn clarify that the functional test of mental capacity will be removed in the revised codes, given that it is contrary to the CRPD? Representatives of the National Advocacy Service, which comes under the Citizens Information Board, spoke before the committee a few weeks ago. It provides independent, professional and free advocacy services to adults with disabilities. How will the DSS interact with it? What does the DSS see as the role of those advocates going forward? What steps is the DSS taking to meaningfully involve disabled people's organisations, especially those representing the people most affected by the assisted decision making legislation, in its preparations for commencement? How is it ensuring that its process and outputs are accessible to everybody?

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