Mr. Jarrod Clyne:

This is separate from consideration of the optional protocol and just to note that the International Disability Alliance does not often engage directly in these kinds of processes but I will offer some observations from the point of view of the CRPD and general comment No. 1. It can be made complex or it can be made quite simple and the essential test is whether mental capacity is being equated with legal capacity. If so, then one cannot say that one is being consistent with the CRPD and the views expressed in general comment No. 1. That seems to be at the heart of the legislation, which is in itself deeply problematic.

I understand there was some direct engagement form the committee and Professor Jonas Ruškus, the vice chair, wrote to the Minister responsible to clarify that the current law did not comply with the requirements of Article 12 and general comment No. 1. This is not to understate the challenges of implementation and I am afraid I do not have a list or number of countries that could be said to fully comply or those that do not. However at the same time if one is saying that one's legislation is in conformity with the CRPD and the standards, then that would require reform so it is good to be honest about that.

I am not sure that an argument relying on legislation from 1871 which was abhorrent being replaced by something better but still not consistent with human rights is necessarily what the objective should be but I will leave it to committee members to make that assessment. It is good to be honest and clear about it. This goes to the heart of non-discrimination. Article 12 is about equal recognition under the law and that is where persons with disabilities are seen as being fully human and full legal persons in domestic legislation. It is extremely important and that is why there was a general comment No. 1 after all. I am sure many service providers and health professionals would find revised standards challenging but the objective is presumably to ensure the rights of individuals. In addition we can look at the effect and the intent of the law and it is really hard to see how this is not going to be anything but discriminatory in its current form. Knowing nothing about the Irish domestic process and how rapid this process will be, I think it is practical to reflect on what the objective is and whether it will be possible to remove the equation of mental capacity with legal capacity that, even if time-bound is still discriminatory and arguably therefore wrong.