Professor Eilionóir Flynn:

On behalf of the Centre for Disability Law and Policy at NUI Galway, I welcome this opportunity for engagement with the committee on the important subject of proposed amendments to the Assisted Decision-Making (Capacity) Act. Our centre was among a coalition of organisations that campaigned for the Act to be introduced in 2015, as part of Ireland’s efforts to bring our laws into conformity with the UN Convention on the Rights of Persons with Disabilities, UNCRPD. We share the frustration of other groups who have made submissions to this committee that in the seven years since its enactment we have not seen sufficient change to protect the human rights of those subject to this legislation. The centre has provided a detailed submission to the committee outlining our objections to some of the proposed heads of Bill and the need for further amendments to fulfil Ireland’s human rights obligations. I am happy to discuss any of these issues with committee members in the discussion that follows, but in my opening statement I will draw their attention to three overarching issues with the process of developing, and the substantive content of, the amendments proposed.

First, as has been noted by other groups, especially disabled people’s organisations, the process by which these amendments have been developed has not been inclusive. A 174-page document containing the heads and explanatory notes was published by the Department on 22 November. To the best of my knowledge, there was no public process organised by the Department to engage with disabled people’s organisations, or other groups, in the development of these heads. There is also no plain English or easy-to-read version of the text available. Indeed, there is still, seven years after the enactment of the original legislation, no easy-to-read version of the 2015 Act available. This law has a significant impact on the lives of disabled people, including people with intellectual disabilities, and it has not been made accessible to them. This raises a broader issue with the accessibility of legislation, and legislative development in general, which I urge all Deputies and Senators to tackle.

Second, I am concerned about the overall direction of the amendments we are discussing. While many of those amendments may appear minor or technical in nature, I believe a clear pattern emerges from them, which is the increasing bureaucratisation of support and the creation of an assisted decision-making industry. Many of the amendments will make it more difficult for a person to designate their chosen decision supporter, or more challenging for a supporter to work in the way the person wants. This is the exact opposite of what many of those who campaigned for this legislation wanted.

Third, I am disappointed that the amendments put forward in the heads of Bill are not more ambitious in respect of human rights compliance.

There are some obvious gaps in the original Act which are not addressed in the amendments proposed, like ensuring that advance healthcare directives remain fully applicable for those detained under the Mental Health Act and removing language concerning the deleterious effect on the unborn in the wake of the repeal of the eighth amendment of the Constitution. Some of the provisions incorporated here from the Disability (Miscellaneous Provisions) Bill 2016 also miss the mark in terms of what we hoped for, for example, in enabling disabled people to sit as members of juries. The amendments also do not address the need for further resources to be provided to give effect to the decisions people may make under this law, including decisions about where and with whom to live.

Finally, the Act’s reliance on the functional assessment of mental capacity remains incompatible with Article 12 of the UNCRPD according to general comment No. 1 of the UN committee on the rights of persons with disabilities. We have waited seven years since the enactment of this Act but if we need to wait a bit longer to improve the Act’s human rights compliance, it may be worth the wait.