Oireachtas Joint and Select Committees
Thursday, 10 November 2022
Joint Oireachtas Committee on Disability Matters
UNCRPD and the Optional Protocol: Discussion
Apologies have been received from Deputy Canney. The purpose of today's meeting is to discuss the UN Convention on the Rights of Persons with Disabilities, UNCRPD, and the optional protocol. I welcome from the Decision Support Service, DSS, Ms Áine Flynn, director, Ms Patsy Fitzsimons, head of complaints and investigations, and Ms Kate Frowein, head of supervision. Also joining us remotely is Mr. Jarrod Clyne, head of advocacy at the International Disability Alliance.
Before we begin the meeting, I will deal with a few housekeeping matters. All those present in the committee room are asked to exercise personal responsibility in respect of protecting themselves and others from Covid-19. Witnesses are reminded of the long-standing parliamentary practice that they should not comment on, criticise or make charges against any person or entity by name or in such a way as to make him, her or it identifiable. Therefore, if their statements are potentially defamatory in terms of identifying a person or entity, witnesses will be directed to discontinue their remarks and it is imperative they comply with the direction of the Chair.
Members are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official in such a way as to make him or her identifiable. I remind members of the constitutional requirement that members must be physically present within the confines of the Leinster House complex to participate in public meetings. In this regard, I ask any members joining remotely, prior to making their contribution, to confirm they are within the grounds of the Leinster House campus.
I call Mr. Clyne to make his opening statement.
Mr. Jarrod Clyne:
I thank the Chair. The mission of the International Disability Alliance is to promote global implementation of the CRPD. This extends to the promotion of the optional protocol. We therefore encourage all states parties to the CRPD to accede to the optional protocol. Currently, there are 100 states parties to the optional protocol. Ireland is one of only three EU member states not to have ratified it yet. The communications procedure the optional protocol provides is an important form of accountability for potential violations of rights under the CRPD. The application of the CRPD to individual cases is also a way for the CRPD and the work of the CRPD committee to become more tangible and real to individual rights holders. By facilitating access to a remedy, it can have a direct impact on the lives of persons with disabilities who may have had their rights violated. Even if no violation is found, the right to be heard and the right to access justice, including at the international level, will have been respected, and that is of considerable importance. There is considerable practical and symbolic value in being able to have recourse to the CRPD committee after exhausting domestic remedies. The communications procedure helps strengthen the standards of the CRPD through the rigorous process of exchange of detailed written submissions on individual complaints from the affected individual and the state. This is by nature very different to the process of periodic reviews of states parties’ implementation of the CRPD and those concluding observations, which are necessarily more general in nature and more systemic and less about individuals, even if they are ultimately the subject.
The contribution to the committee’s jurisprudence through individual communications can be important. It helps to justify the views expressed in general comments. The ratification by Ireland of the optional protocol will in turn help raise standards for all states parties to the convention. Some examples of topics on which the committee has found important and influential individual communications decisions include inclusive education, health and rehabilitation, employment, the right to vote, and gender discrimination. While we recognise the views of the CRPD committee are not binding or of a legal nature, we hope this parliamentary committee will recognise the important contribution that ratifying the optional protocol can make for the lives of persons with disabilities in Ireland and the positive impact on the progressive development of international human rights standards.
We express our support for other organisations' views on the Assisted Decision-Making (Capacity) Act 2015. Specifically, we call for the abolition of the functional test of mental capacity to ensure the Act reflects the full standards of the CRPD in Article 12 and the view of the committee in general comment No. 1. This is an example of the positive impact the jurisprudence of the CRPD committee can have on domestic legislation. We urge the committee to take that into account.
Ms ?ine Flynn:
The Mental Health Commission, MHC, is an independent statutory body established under the Mental Health Acts 2001 to 2018. The MHC’s remit has been extended by the Assisted Decision Making (Capacity) Act 2015. Section 94 requires the Mental Health Commission to appoint the director of the Decision Support Service to perform the functions conferred on the director by the 2015 Act. I was appointed as director in October of 2017. I am joined today by my colleagues Ms Patsy Fitzsimons, head of complaints and investigations, and Ms Kate Frowein, head of supervision.
Most of the 2015 Act has not yet been commenced. It has been acknowledged by Government that commencement is essential to the State’s commitments under the United Nations Convention on the Rights of Persons with Disabilities. We have been invited by the committee to provide an update on the progress towards commencement and, specifically, the current position of the Assisted Decision-Making (Capacity)(Amendment) Bill 2022. As the committee is aware, the legislation and its commencement are the responsibility of the Department of Children, Equality, Disability, Integration and Youth. The ratification of the UNCRPD optional protocol is a matter for Government.
The key reforms introduced by the original 2015 Act may be briefly summarised as follows. Wardship under the Lunacy Regulation (Ireland) Act of 1871 is repealed and all adult wards will be reviewed by the wardship court and discharged within three years. The functional, non-medical, time-specific and issue-specific approach to capacity is put on a statutory basis. The Act stipulates guiding principles, including the presumption of capacity and the obligations to support decision-making and to give effect as far as practicable to a person’s will and preferences rather than a best interests approach. A new three-tier framework to support decision-making is established. There are tools for advance planning by way of a new form of enduring power of attorney and statutory advance healthcare directive. The Act establishes the Decision Support Service with multiple statutory functions, including the promotion of the new framework, the provision of information and guidance, and the registration and oversight of decision support arrangements.
The DSS has been working to a time-bound and costed project plan approved by the Department of Justice in 2020. The establishment project to design and build a service has comprised approximately 30 sub-projects across six work streams. We can provide further detail if that is of assistance to the committee.
A key component has been our extensive stakeholder engagement and communications activities, involving engagement with thousands of diverse stakeholders, including, most importantly, potential future users of the service. The DSS has publicly provided assurance that we will be ready to begin operations as soon as the Act is commenced. As stated, the key dependency at present is the enactment of the Assisted Decision-Making (Capacity) (Amendment) Bill 2022. The timeline to enactment proposed by the Department earlier this year has not been achieved. The Bill completed Committee Stage in the Seanad last month and a date for Report Stage, as we understand it, has not yet been set. The Department has restated its commitment to ensuring that further delay is as limited as possible. The DSS is aware that work on the amending legislation has been intensive and that it is a detailed and complex Bill. It is important to note, however, that the Bill does not significantly amend the fundamentals of the principal Act. Many of the amendments are technical and procedural in nature.
The following are some of the reforms contained in the Bill. Wards of court who are to be discharged under Part 6 will have improved access to the court, to representation during the process and to ongoing periodic review thereafter. There is a revised two-part process for the registration and notification of an enduring power of attorney and treatment decisions are removed from the scope of an enduring power. Provisions relating to the purported exercise of restraint by attorneys and decision-making representatives have been deleted. There is provision for the remuneration and reimbursement of panel member decision-making representatives by the DSS, rather than from a relevant person’s assets in appropriate circumstances and for the setting of limits on a decision-making representative, DMR’s, expenses and remuneration generally. A limited provision allowing the court to confer on the director responsibility for management of the relevant person’s property is repealed. There is a clearer basis for the director to resolve complaints informally rather than escalating to court. The DSS may apply to court for a temporary suspension of a decision-supporter pending investigation in urgent cases in order to prevent harm. The DSS is given authority to specify the content of multiple forms that would otherwise be the subject of regulation. The Bill states that the High Court retains inherent jurisdiction to make orders for the care, treatment or detention of persons who lack capacity. The exception relating to advance healthcare directives and their applicability when a directive-maker is detained under the Mental Health Act is partially addressed. Under new transitional provisions, an application for wardship that has been initiated at the time of commencement may proceed. We are happy to discuss these amendments and the Bill in general if that is of assistance.
The 2015 Act is ambitious legislation. A huge number of persons are waiting impatiently for its delivery and we share their impatience. Undoubtedly there will be matters that need to be revisited in time. It is part of the director’s duties to track and report on the operation of the Act to ensure that it is achieving its ambition. Once again, we appreciate the invitation to attend the committee. We are happy to take questions and we look forward to our continuing engagement with the committee.
I thank the witnesses for their opening statements. I received emails in the past 48 hours about relevant answers to parliamentary questions but I have not read them yet. I was always of the understanding that we would ratify the optional protocol as soon as the Assisted Decision-Making (Capacity) (Amendment) Act, its amendments and the DSS were fully established. I understood there would be no further impediment to Ireland ratifying the protocol. I now hear that there has been a change in language and the new language is "when we are compliant". I imagine no state ever reaches a place of absolute compliance. If that were the case, an appeals mechanism and the protocol would not be needed. I am curious whether any of the witnesses can enlighten the committee about that or has any observations or knowledge about it. I apologise that I have not read the responses to the parliamentary questions on that but I have received several emails in this regard.
My second question is about wardship. How quickly will that situation be moved to presumption and to individuals coming under the DSS?
Third, we have had a significant injustice with regard to the dissipation of funds within the Courts Service for people who have been wards of court due to ill-advised, to put it kindly, investments on their behalf. Consequently, real people are left without the funds they were supposed to have to care for them throughout their lives. Where in all of this will there be redress or a place of application for those individuals?
I will confine myself to those three questions.
Mr. Jarrod Clyne:
I will respond without knowing much about the Irish context and processes. The optional protocol is entirely separate from any reform Ireland might be undertaking relating to legal capacity. I apologise if my statement, which added the second issue, may have confused or conflated matters. It is not that any state must be perfectly in compliance with the convention before it decides to ratify or accede to the optional protocol. It simply establishes a communications procedure for individuals in Ireland who have gone through court processes but feel the Committee on the Rights of Persons with Disabilities, CRPD, might have some views to offer the Irish Government on a potential rights violation. It is better to consider them entirely delinked. It is not the same as ratification of a treaty process. It is the same as communication procedures under other treaties that Ireland is a state party to, including the International Covenant on Civil and Political Rights.
Ms ?ine Flynn:
I have no better information than the Senator on her first question. The DSS is not involved in the process of the ratification of the optional protocol. I am aware that earlier undertakings were made that it would be ratified when - the particular contingency identified was - the 2015 Act was commenced. I am not aware of any changes of plan around that. That is a matter for the Government, I presume in consultation with the Department of Children, Equality, Disability, Integration and Youth and I suspect with the advice of the Attorney General. I hope it will not be delayed. We would certainly welcome its ratification.
I will turn to the Senator's other questions, if I may. The second one was about wardship. The 2015 Act abolishes wardship under the 1871 Act. There will not be any new applications for wardship and that will follow immediately on commencement. One of the latter amendments to the Act provides that if an application for wardship has been initiated at the time of commencement, it may be pursued to its conclusion. However, a more recent additional amendment states that should not inhibit a person who is the subject of such an application having access to the framework under the new Act. All current wards of court will become immediately eligible to commence the process to come out of wardship. There are approximately 2,200 adult wards of court at present and the largest category is older adults who have some form of dementia. All will be immediately eligible to move an application under Part 6 of the Act. That falls under the responsibility of the wardship court and the Office of Wards of Court has been doing preparatory work. All must have their cases heard and exit wardship within three years at the latest. They may have their property and autonomy fully restored to them or the court may find they require one of the supports offered under the new Act.
The Senator's third question about wards who have had negative experiences of wardship and the particular contention that money, which under wardship is always invested in court, was lost is outside the remit of the DSS.
I am aware it was the subject of an inquiry at committee level some years back and the Office of Wards of Court participated and I understand commissioned their own independent report as well, so it did get some attention some years ago. Beyond that I am not free to comment.
I thank the Chair.
Given that we have a representative of the Mental Health Commission here, its recent report shows that when it comes to the use of restraint and people being secluded in the past year, the findings are very stark with a rate of 6% and seclusion periods of anything between three minutes and - to wait for it - 8,759 hours in one whole year that an individual has been secluded. We are dealing with someone who is particularly vulnerable in that situation. They are really frightening statistics from the Mental Health Commission and I congratulate it on its report. One thing that jars with me around the optional protocol is that all internal processes of the State must be exhausted before we get to have another hearing that is completely outside of the State. For individuals who have been subjected to a situation like that, and I am not referring to that particular individual, how do such people go through an entire court process and exercise their rights that would come with the optional protocol, when they are already vulnerable and have already been subjected to this? There is perhaps a person who would have been adjudicated not to have capacity versus people who were in capacity and are maybe medical practitioners. Could somebody explain to me how that will work?
Ms ?ine Flynn:
I may not have the answers on the admissibility requirements and the gatekeeping aspect around the communications process for accessing the committee under the optional protocol. I thank the Senator for her comments on my colleagues' report on restraint, which I know was a detailed and well-considered report. I acknowledge that its findings were concerning and my colleagues on the other side of the house at the Mental Health Commission were responsible for the delivery of that report and we hope its findings will be taken seriously. I do not know whether our colleague from the International Disability Alliance, IDA, may have more to say about what is required for the exhaustion of domestic remedies before a person or an individual applicant has access to the committee under the protocol.
Mr. Jarrod Clyne:
The threshold is the exhaustion of domestic remedies but if one can demonstrate that domestic remedies are likely to be ineffective, you do not have to go through an exhaustive process as such. Ireland has a very robust legal system but as the Senator has said, there are some situations where, in practice, access to justice can be exceedingly difficult particularly when asking the Judiciary to reconsider some very old practices that are unfortunately very prevalent in its constraint of state power. The optional protocol additionally has fewer requirements in terms of procedure from an individual perspective. People can simply file something and can have assistance from NGOs and from lawyers and it is not as technical in some ways as domestic processes are. There are also some advantages and flexibilities that it does offer.
The challenge of course is ensuring people know about the optional protocol once it is ratified and that they can have their rights facilitated and those views exchanged.
I thank Mr. Clyne and I thank the Chair for indulging me. I am 100% behind the ratification of the optional protocol urgently but my concern is there is a danger that it is not quite the white knight that people may consider it to be unless it is influencing judicial determinations and every aspect and that everybody understands it and makes a huge paradigm shift as to the rights of persons with disabilities.
First I have a question for the International Disability Alliance. Mr. Clyne said that Ireland is one of three EU countries that have not ratified the optional protocol. Have the other states ratified the convention but not the protocol, as I am presuming most countries ratified both together? On that point, I cannot understand why there is an optional protocol at all and why the whole lot is not just taken as one part. It does not make sense to ratify a convention and then not to ratify an optional protocol with it.
On the procedure of inquiry is it true a country can opt out of that? Is it that they cannot opt out of individual communications but can opt out of the procedure of inquiry? If so, I hope this State will not do that but I am fearful that it will.
Following from one of Senator Seery Kearney's questions, she noted that before a case can be taken under the convention, national inquiries or complaints procedures must be exhausted. Mr. Clyne stated that if it can be shown or proved they will not give a result, one can go straight to the convention. How does one actually show or prove that the national complaints procedure will not work in that case?
I also have questions for the Decision Support Service. Ms Flynn said that wards of court are to be discharged under Part 6 of the Assisted Decision-Making (Capacity) Act 2015. In order to do that, one must have access to legal aid. Will free legal aid be made available to someone in that instance? I am also aware of someone who was made a ward of court just last Friday. I am wondering why that procedure is still being adhered to when we are about to come out of it? It does not make much sense and has caused a lot of upset for the family in question.
Ms Flynn said that people will be assumed to have capacity. Whose responsibility is it to check whether they have capacity? Will the procedure be different to the current procedure in determining whether someone has capacity?
Mr. Jarrod Clyne:
As to why the communication procedure is not within the UNCRPD itself, I do not have a good answer for the Deputy. In some human rights treaties it is done that way and in others it is integrated. There is a mix of practice. Roughly two thirds, or 100 out of 184, states parties to the convention have ratified the optional protocol, so that gives a sense of the numbers. In many cases it is years later after states have considered and seen the results of the views of the Committee on the Rights of Persons with Disabilities and reflect whether they are willing to have their scrutiny placed upon them. There is a range of approaches and it is also true that one can opt out the inquiry procedure. It is not something we would recommend. The inquiry procedure is not often used and one can not know if it will be applied to Ireland. My sense would be possibly not but there is the example of the United Kingdom, which was one of the first inquiries and may give the Deputy some interesting insights. There are a range of options and we would always encourage the most progressive and human rights-friendly approach.
Ms ?ine Flynn:
I think the balance of questions were for us. Deputy Tully's questions concerned the review of those existing wards of court under Part 6 of the Act and her first question was a practical one about legal aid. I am not able locate the actual amendment at the moment but I am confident that an amendment contained in the amendment Bill does extend the provision of legal aid to those wards who will have access to the discharge process under Part 6. As I said in the opening statement, the position of wards of court is improved by amendments to Part 6 generally in terms of representation and access to the court to have their voices heard, as well as the removal and entire repeal of section 57, which proposed an abbreviated process for current wards of court and which referred to "a class of wards", which I think was objectionable language.
The Deputy's second question was why people are still being admitted to wardship.
The DSS is not party to those applications; we will not be a party to Part 6 either. Wardship should currently only ever be applied for as a last resort. It is an archaic process and its repeal is overdue. Petitions are brought because there is a perception that a decision or set of decisions needed to be taken and that the support of wardship is required. I know nothing about the case to which the Senator referred, but I presume it was in those exigencies that the application was brought. She is quite right that the person admitted to wardship will immediately be eligible to apply to come back out of wardship.
Ms ?ine Flynn:
That question is probably better addressed to the Courts Service, which has been mobilising to prepare for these applications under Part 6. It has done preparatory work including engaging with existing wards of court, their families and committees. It has done a communications exercise around that. From information I heard yesterday, about 40% of current wards of court are anxious not to wait and would like their applications to be heard and to be discharged from wardship within the first year. I do not have any particular intelligence as to how long it will take or how the court is organising for that. I had heard that perhaps three judges were going to be identified to take rolling lists to deal with those applications while another would deal with continuing orders in wardship, but those questions are better addressed to the Courts Service.
I asked about legal aid because if someone is taking a case under the Equality Act and taking it to the Workplace Relations Commission, WRC, they cannot use free legal aid. I wanted to know if it was different for-----
Ms ?ine Flynn:
The idea of these amendments to Part 6 is to create parity between current wards of court and the so-called relevant person under Part 5 of the Act, who would be the subject of an application under Part 6 of the new procedure in that court process. They will have access to a scheme of legal aid; it is not means-tested. They do not have to satisfy criteria that might ordinarily apply to show chances of success or a risk-benefit analysis; it is an accessible scheme of legal aid, it is to be hoped. The Legal Aid Board may have better information about that.
The second question was about presumption of capacity, which is the law already. It is the common law position; it should apply even in wardship that an adult is presumed to have capacity. The Act is simply putting on a statutory basis what is already the position; there should not be any kind of transformative aspect to that, it should be happening already. There is some contention around the propriety of a functional assessment of capacity, which we could speak about for quite a while, but it is already the law also and has been. It has been the common law position for the past 14 years since 2008 and is already operating and adopted in policy and standards documents. It is very much with us already.
Mr. Jarrod Clyne:
Apologies, I realised that I neglected to answer one part of the last speaker's question about demonstration that domestic remedies would be futile. This is similar to the European court system; there are a range of views from other treaty bodies that inform this. There might be an existing precedent that rules out a claim; undue time taken to consider a complaint; or there may be financial barriers, for example if an individual cannot afford to take proceedings and there is no legal aid for such proceedings, in practice they cannot take things further. There are different criteria. The committee has a well established approach to this. It is not a purely subjective test, it is not just that the individual believes the remedies will be futile, one has to point to some objective factors.
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?
Ms ?ine Flynn:
On the codes of practice, we had the opportunity to write to the committee previously. The committee should have a letter from us dated 5 July, as this same question arose at a committee hearing on 23 June at which the Mental Health Commission was present. I wrote to the committee thereafter. In relation to the consultation about the draft codes of practice, those codes came to us having been drafted under the leadership of the National Disability Authority and on the healthcare side by the multidisciplinary working group appointed by the Minister for Health. Both groups engaged previously during that drafting process with relevant stakeholders and expert writing groups in the development of the draft codes, which then came to us. We reviewed them in detail and amended the drafts prior to commencement of the public consultation process, which we conducted as required under the 2015 Act. To be clear about what the nature of a code of practice is, they are not the only document that is going to exist to provide guidance and support for people who require access to the Act. The particular status of a code of practice is that a person concerned shall have regard to a code of practice when performing a function under the Act in respect of which the code provides guidance. Under section 103 of the Act, the consultation period is required to be of not less than 30 days in duration.
There are 14 codes in all. The overall code relates to supporting decision-making and assessing capacity. There are then sectoral codes for legal, financial and healthcare professionals and codes for specific decision supporters. We consulted with the National Disability Authority, the Citizens Information Board, HIQA, the advance healthcare directive multidisciplinary working group and representatives from the professional bodies and from the healthcare, social care, legal and financial sectors. In addition, we identified more than 100 other relevant stakeholders and wrote to larger representative and network organisations asking that they would communicate the codes to their membership broadly in order that everyone can be involved in the planned consultation process. We wrote to these organisations at the beginning, in the middle and at end of both consultation periods. The consultation process was also highlighted in our newsletters and in media. We ran a campaign that included newspaper and radio advertisements, social media and publication on our website. In addition, we made a series of presentations. We received over 300 responses regarding the codes of practice. It was a meaningful, not a narrow or constrained, consultation process, and we were able to get good feedback that we incorporated into the ultimate version of the codes. There are lessons to be learned. I do not doubt that for a moment.
There was a question about timelines for the codes-----
Ms ?ine Flynn:
AsIAm provided a response. In the letter I wrote on 5 July, which is contained in appendix 1, I provided a full list of everyone responded. There were 300 responses in total. We were able to take meaningful learning from that response process and incorporate it into the final version of the draft codes. The codes are agile documents; they are not forever. We can revisit them. We have also supplied a number of scenario or vignette-type resources which will be accessible via the codes for the guidance of interested parties. The codes may well require to be revisited. I expect that they may well be revisited in early course as we learn whether they are fit for purpose. We are satisfied, however, that the consultation process was properly run. It was not at all narrow or superficial. We are happy with the outcome, but we are always willing to hear from stakeholders.
Deputy Cairns had a question about how we engage more broadly with our stakeholders. Again, in the letter to the committee dated 5 July, we provided, in an appendix, an account of all the stakeholders we have engaged with. Up to last week, I have met with approximately 101 different organisations this year. We do see quite a number of the people who are going to be impacted by the Act. Since last year, the Mental Health Commission has conducted a stakeholder initiative whereby we invite experts, by experience, to come to our board meetings. DPOs have been represented at those meetings. Through the good offices of Inclusion Ireland, we did focus group work by means of which representatives of potential future users of our service have been able to look at our processes and our system in order to provide useful feedback, especially in the context of accessibility issues. We constituted a stakeholder forum, the membership of which comprises the Independent Living Movement Ireland, Mental Health Reform, Down Syndrome Ireland, Inclusion Ireland, AsIAm, the National Platform for Self-Advocates, the Irish Deaf Society and the Neurological Alliance of Ireland. This forum has been helping us to provide expert consultative input on the public information campaign, which will be launched shortly, our public digital portal, the development of policy, the provision of information in suitable formats and the overall delivery of our service. Our door is open. We are always willing to hear from people who stand to benefit from the Act and to take good learning from them as to how we can improve our accessibility and how we can ensure an inclusive approach.
Deputy Cairns asked other questions. I apologise. Am I taking too much time?
Ms ?ine Flynn:
We have addressed the functional assessment of capacity in previous communications. Deputy Cairns asked whether it is to be amended in our codes. As I said in response to an earlier question, the functional assessment of capacity is the law and is dealt with in section 3 of the Act. Our codes must reflect the legislation. We cannot depart from it or remove it from the codes of practice.
Ms ?ine Flynn:
The functional assessment - and we have heard from our colleague in the International Disability Alliance - attracts quite a bit of comment. General Comment No. 1 of the Committee on the Rights of Persons with Disabilities, which was published in 2014, made certain propositions that the functional assessment of capacity must be departed from and, incidentally, that substituted decision-making is not permitted. General Comment No. 1 is not legally binding. However, it is an important and influential document. General Comment No. 1 is divisive - I do not know whether our colleague would agree - and most states parties to the convention are not in strict compliance with it. I am open to correction, but I gather that perhaps only three states parties are compliant with it.
The functional assessment is something that was broadly debated in the run-up to the enactment of the principal Act in 2015. That legislation went through something like 14 different debates, and to good effect. The Act reflects improvements which flowed from those debates. This legislation was originally called the mental capacity and guardianship Bill, whereas now it is an Act which focuses on the importance of supporting decision-making and the concept of will and preference is the golden thread that runs through it. If we were to take the functional assessment out, a few things would flow from that. We would effectively be dismantling much of what is core to the Act. Perhaps that would be worth doing, but we could not do that and have urgent commencement. We would be fundamentally rewriting the Act if it were to be taken out. The functional assessment has been with us in common law since 2008. It is an argument and it is forcefully argued in some quarters. I do not encounter it in our stakeholder engagement, but if it were to be-----
This committee is charged with the implementation of UNCRPD, and we hear from DPOs. I am also a member of the children's committee, as do other members of this committee, which had a rushed process of looking at the Assisted Decision Making (Capacity) Act. One of the things we heard from expert witnesses was that the result of that test is different depending on who carries it out, that it is not a good test to use and that it often discriminates against people with disabilities. It is something we need to challenge as a committee in the context of all the legislation we look at. I certainly did so when that legislation was, what seems now to have been unnecessarily, rushed through. At the time, the Minister was citing people in the UN, experts on committees and the vice chair of the UN committee stating that the Irish legislation was great. The vice chair later clarified that he is completely against the use of this test because it discriminates against disabled people.
Ms Flynn states it would mean dismantling everything if, for example, the codes of practice did not include it. Would that be the case? Does the DSS not have to try to comply with the UNCRPD as well as with Irish legislation that, maybe, is not up to scratch on the basis of the fact that we did not get to scrutinise it adequately.
Ms ?ine Flynn:
As much as Deputy Cairns, we were spectators.
I will make a few more observations on the functional test. It is important to consider what it replaces. As stated, it was already common law, but what we see with this Act is a move away from the binary approach in wardship under the Lunacy Regulation (Ireland) Act 1871. That is not a functional approach. It has been described as a blunt instrument because it is a form of plenary guardianship that identifies someone as being of unsound mind and incapable of managing themselves and their affairs. What is distinct about the functional test is that it is time specific and issue specific. It asks what needs to be decided, at the time it needs to be decided.
Another point that might count in favour of the way our Act is formulated is that it is specifically not a medical test. There is no diagnostic component. It is not the case, therefore, that incapacity is being linked to - as in the Mental Capacity Act in England and Wales - a defect or impairment in the functioning of the mind or brain. It is consciously a demedicalised test.
Then there is the formula, namely, understand, retain, weight up and communicate, which has been with us already at common law since the case in 2008. There are also extra protections supplied in section 3 of the Act, which sets out the functional test so that information has to be explained in a way that is appropriate to the person and his or her circumstances and it does not matter if the person can only retain the information for a short time. There are additional protections contained in section 8 of the Act, including the presumption of capacity and importantly, and this is really central to the Act and is in fact reflected in its Title about assisting, the brackets around capacity are important. All practicable steps must first be taken to help a person to make their own decision and an unwise decision does not mean the person lacks capacity. The Deputy touched on this fear that third party providers might apply the functional test in a discriminatory fashion and in some way restrict a disabled person's rights. There are a number of points there. First, capacity is not assessed as a first step, of course one does not, the person is supported in his or her autonomous decision-making as far as possible. The Act is not prescriptive or exhaustive about who may assess capacity because knowing whether somebody understands the information relevant to a decision should be something that resides with the person who is engaged in that conversation and knows what understanding that information should consist of. When we are engaging with stakeholders, including service providers, if they are going to assess somebody's capacity, which is not something you do first, we ask them what are they going to do after that. We make that point strongly. It cannot be a way of bringing down the shutters on somebody. I think this was stated in the original debate leading up to enactment back in 2015 but the test is with a view to putting in place appropriate supports and our Act is quite ambitious in putting in place three different tiers of support. Of course opinions differ on this and general comment No. 1 strongly says one should not assess capacity. I am not sure where that has been applied in practice and perhaps our colleague can help us. What does never assessing capacity consist of? There are thousands of pages in literature about this and full three-day conferences devoted to what proper compliance with Article 12 consists of. I do not claim that this is perfect legislation but it is ambitious, progressive and necessary legislation and in the debates about the amending legislation, there was a return to some very fundamental arguments that were made and not followed when the Act was first enacted and the opportunity was taken to reinsert some of those arguments which are not actually contained in the amendment Bill at all. All of this should be kept under review and this may not be the legislation for all time. It had better not last 150 years like the last Act. This is where we are at the moment. For as long as we do not commence the 2015 Act, we are still in 1871.
Ms ?ine Flynn:
The National Disability Authority, NDA?
Ms ?ine Flynn:
I am sorry and I thank Deputy Cairns for that. That needs to be updated. We hope to have those codes of practice and to be able to publish them prior to commencement. I come back to the point that they are not the only tool or guidance around the Act. We have developed various explainer videos and there is a lot more on our website that I hope will be of assistance and we are developing that all the time.
Finally, we engage quite a bit with the National Disability Authority and are developing a memorandum of understanding, MOU, with the National Advocacy Service who previously appeared before the committee. Advocacy is really important under this Act and there is a code of practice for advocates so I will welcome engagement with advocates on an ongoing basis.
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.
Thank you. We have two transition year students from St. Aloysius School, Cork, in the Public Gallery and they are very welcome. I hope they find the committee meeting informative and interesting and that they enjoy their trip around Leinster House over the day.
I welcome the witnesses and thank them for their contributions and helpful answers so far. My first questions are for the Decision Support Service. Following Deputy Cairn's earlier comments and when those public consultations came out, we heard a lot of disappointment from disabled persons organisations, DPOs, and from people with disabilities on those public consultations due to the time of year they were conducted during the Covid-19 lockdowns. I want to stress that while some of the very organised DPOs contacted me, I did not have contact from the smaller ones who are working hard and have maybe just a few individuals working off their own bat and without having national funding. To have a very short period of consultation was really prohibitive for many people. That is what this committee and the Committee on Children, Equality, Disability, Integration and Youth heard. In future, perhaps that space should be widened and work should be done to support DPOs to ensure their voice is heard. They are very different to service providers and we have been learning constantly from them. On that, I genuinely do not think it was in adherence with the CRPD to not have a broader reach and broader timeline on those public consultations and also due to the time of the year considering the lockdowns and everything that was going on.
The Decision Support Service mentioned the codes of practice and that it worked with the HSE human rights equality policy officer and those stakeholders. I have received feedback from HSE staff on the ground who will possibly be interfacing with decisions being made. What engagement has the DSS had with medical practitioners and the people who will be faced with this on the ground?
I think many of the people at the interface, that is, the stakeholders on the ground with people, do not know what is happening. What is the Decision Support Service's role in that? Is it a singular HSE role and is it not doing that? What role is taken in that process? This brings me back to another point with regard to that functional test and the different results highlighted. What is the organisation's role in training people to understand those codes of practice? It possibly may not have one. No matter how robust the codes of practice, the ball is going to be dropped if people are not trained in understanding them. This means people will not get their rights because an individual, through no fault of his or her own, does not interpret things adequately in terms of what we want under the CRPD. To return to the wards of court, what role or knowledge does the DSS have in respect of the supports people will have if they are released from the system? Will they have housing and financial support? What supports can the DSS put in to support that individuality and independence in order that they can be released? I also have a question for Mr. Clyne but to avoid confusion, I will wait.
Ms ?ine Flynn:
I have referred to some of it. We wrote setting out how that consultation was conducted and that we would be publishing our report on how the consultation was conducted in conjunction with the publication of the codes. The appendix lists all of the organisations that engaged with us. I am not sure if by DPO the Senator means the strict definition of a disabled persons organisation. There are five or six that strictly qualify as DPOs. We heard back widely from the disability sector. We always encourage engagement from the ultimate potential users of this service. If there are any that feel they have not heard from us, then I ask that they please be sent our way. We are the provider of information and guidance under the Act. We have met multiple organisations that represent the interests of disabled persons, as well as DPOs, properly termed. However, we are always open to engagement. I am very happy to have those conversations continue. They are the most important conversations we can be having. In the same letter of 5 July, I set out all of the organisations we had conferred with at that point in the year,and obviously we have done more since.
I think the Senator had a question about how we are engaging with the healthcare sector. A lot of that happens. Yesterday, I spoke with the Royal College of Physicians in Ireland, and took part in a HSE-organised event, which was particularly on the interface with mental health services. Last week I spoke to one of the teaching hospitals in the south east and to a provider of residential services to older people. That is just to give the Senator a sample of how extensive that engagement is. The HSE human rights and equality office does a lot of that too, because that is its sector and we do some of it together. It has a really good website with lots of resources, namely, assisteddecisionmaking.ie, and we encourage people to consult that all of the time. We have a duty to provide information and guidance across the sectors. While it does not go as far as training, we do input on training all the time and the level of engagement has been very good and we know there is an appetite for information.
The Senator's final question was about current wards of court. They are coming out of wardship. That is undoubted. They have to, under the Act. Our function is not so much part of that review process. However, it may be that as an outcome of the review process, they move over to one of the supports offered under the 2015 Act and that is where we would come in. We might be supervising a co-decision-making agreement or the operation of a decision-making representation order. There is a bigger question about what resources will be more generally in terms of accommodation and that is not our remit. I think there will always be the perennial question about resources and support for people more generally. That is outside of our scope, unfortunately.
I thank Ms Flynn.
I want to ask Mr. Clyne about the implementation of the optional protocol. We all agree that each state should be fully accountable at a human level. An individual should never be denied his or her human rights. Like other speakers here, I am afraid that because of the costs and the difficulties with our domestic remedies, the international procedures with the optional protocol may feel too far away and unattainable. For us to understand the practicalities of implementing the optional protocol, can Mr. Clyne give the committee examples of individual complaints that made it beyond other countries' national legal procedures? Can we have an example of the inquiry procedures? If the fault was on the state and it was found to be wrong, what financial or legal consequences were placed on that state thereafter? I believe our Government and State are afraid of court cases being seen as a panacea, when we have a long way to go before we get to use of the optional protocol, even when we do ratify it. Even if we were to ratify it tomorrow, what were the situations in other countries that had ratified and implemented it when an individual used the optional protocol to call his or her state to account?
Mr. Jarrod Clyne:
The first fundamental point to note, which members may realise but which is worth restating, is that this is not a binding procedure. It is not analogous to European procedures in that way. If an individual submits a complaint or communication, then the state responds. Sometimes there is further back and forth. It is on the papers and at the end, the committee issues its view. It is only a view. It is not technically a decision. They call on the state party, which in this case would be Ireland, to follow those views. It is then over to the Government to reflect and consider what they do in response. The Senator is right that it is not a panacea. It is an additional tool. It can be used by an individual or broader groups for strategic purposes. For example, if you look at the Human Rights Committee views relating to Mellet v.Ireland and Whelan v.Ireland on access to safe and legal abortion, it gives a sense that while they did not change the law, I understand there was a domestic political process going on and perhaps those views supported advocacy domestically. I just want to be clear on the legal status.
In terms of what kind of cases come up, perhaps I might send the secretariat a link to our website that lists short summaries. In Australia there was an individual with psychosocial disabilities who was deprived of legal capacity, and some Australians were also denied the right to vote. The committee concluded that the state in those cases had not fulfilled its obligations under the convention. They recommended specific remedies for the individual and then general remedies as well. It is a little hard to generalise exactly what might come up. I should also note that all of the human rights committees are not incredibly well resourced. The number of communications they are able to process and come to decisions or publish views on in any given year may be about ten or so, and they receive a large number of communications. They necessarily have to be somewhat selective while trying to get through everything. I am saying that I would not expect a flood of communications and views from the CRPD committee in relation to Ireland. Perhaps they might choose some particularly relevant ones that could impact other countries.
It takes several years, at a minimum, for communication to go through this process. It is not always a quick process, although the CRPD committee can advise on interim measures that should be undertaken. Again, this is purely on a voluntary basis but states should interpret their obligations in good faith and implement them to the extent possible, while recognising they are not binding. I hope that gives the committee a sense of a reality check. As the Senator said, it is not a panacea. I will send some summaries of the communications the CRPD committee has published so far regarding commitments around 40 or 50 of the obligations.
It is very clear there is no reason to delay the ratification of the optional protocol. To think that the Government and State should have every single thing perfect before we do so is nonsense and is a bureaucratic blockage for no reason.
I thank the witnesses for their in-depth knowledge when answering questions, which were quite technical as regards the assisted decision-making Act and so forth. There are two points. One is that the ratification of the protocol and the ongoing delay frightens me in respect of the commitments given by the Government. That is something the committee has to pursue. We intend to do that because we are charged with dealing with the UNCRPD and we believe the ratification of the optional protocol is an integral part of that. We will pursue that. Vice Chair, Deputy Tully, raised the issue of legal aid. I ask for clarification on that and for it to be forwarded to our team, or to ourselves, to make sure that we have that information.
I am not sure whether we are being joined by Senator Clonan. If he is not within the confines of Leinster House, he unfortunately cannot contribute. Is Senator Clonan within the confines of Leinster House?
That is okay. I sincerely thank the witnesses for their input. We would greatly appreciate any other information they could give us because we are only as strong as the information we get from witnesses and others. I also thank members for their dedication and for their technical questions. We have some work to do on the optional protocol that we will refer to at our private meeting next Wednesday.