Colm Keaveney (Galway East, Fianna Fail) | Oireachtas source

I am grateful to have the opportunity to speak on the Bill. I welcome it as an important step in the State's progress towards ratifying the United Nations Convention on the Rights of Persons with Disabilities. It bears some relation to the earlier legislation offered in this area and drafted by Mr. Dermot Ahern, the then Minister for Justice, Equality and Law Reform. That Bill was based, in part, on the United Kingdom's legislative experience. The Bill before us has clearly benefited from the experience of the UK legislation, and I welcome that.

As the Minister of State is aware, more than 600,000 Irish people, not far off one in five of the population of the State, have some form of a disability. There are 57,000 persons within Ireland who have an intellectual disability. Historically, such persons have not been treated well and the State has failed to provide for the dignity and respect owed to all persons simply by virtue of their humanity. Ireland has a poor record in this respect, as it does in the area of mental health. Thankfully, the past 15 years have seen significant progress in addressing this historic failing, with the Mental Health Acts of 2001 and 2008 standing as a significant milestones in the area.

I welcome this Bill because it is another significant change in updating antiquated legislation such as the Lunacy Regulation (Ireland) Act 1871. It touches on many aspects that go to the heart of what we should regard as the essence of any state calling itself a republic: equality before the law, liberty of the individual as a default position protected by law, and the autonomy of citizens in making decisions concerning their own lives, including decisions that others might judge unwise or imprudent. The law both reflects and helps to shape societal attitudes. In the case of this Bill, I hope it will alter our attitudes towards those people with intellectual disabilities. It signals a significant move away from the paternalistic approach of the current legislative framework towards one that respects the autonomy and will of the individual to make a decision. The move from the current standard of "best interests" towards one that respects the "will and preference" of the individual is welcome in that regard, as is the move from substitute decision-making to that of an assisted or co-operative decision-making process.

In general, the Government needs to signal, through its choices on how it allocates resources as well as on policy and legislation, that the disability sector should not be viewed as a charitable one. The Government needs to change its attitude in that respect.

Instead, all policy needs to be informed by the attitude that all citizens should be given a fair opportunity to live their lives to the fullest potential and play a full part in the life of their communities. Resources should not be allocated on a charitable basis but on one that recognises that persons with disabilities are entitled to these supports and respect as a basic right, the same as any other citizen, and as an imperative of social justice.

Deputy Niall Collins stated last week that we will be seeking to address several concerns with this Bill on Committee Stage. As I mentioned, this Bill uses different language from other legislation in this area, including the Mental Health Act 2008. How it will interface with such legislation? How will we approach previous legislation in order to make it compatible with this legislation and will amendments be required before this Bill comes into operation? Dr. Eilionóir Flynn from NUIG has raised concerns in respect of section 3. This defines mental capacity in a way that suggests that if a person is found to lack mental capacity, it will result in the loss of their legal capacity to make decisions. Article 12 of the UN convention makes plain that persons with disabilities must enjoy legal capacity on an equal basis with others in all aspects of life. Dr. Flynn believes that this provision may be problematic from a human rights perspective. There are some provisions of the Bill that, while not intending to do so, may result in the continuance of the current substitute decision-making regime. Stronger protections will be needed to ensure that court appointed co-decision makers or decision-making representatives take sufficient and proper account of the will and preference of the individual rather than what is considered the "best interest" of the individual from another person's point of view.

The Bill provides for a broad range of powers for informal decision makers but does not provide for similar safeguards as for other the decision makers contained in the Bill. This power need to be restricted, with a duty to explore assisted or co-operative decision making. This Bill continues to leave unresolved an issue that currently exists under the Mental Health Act. There are still no adequate safeguards for persons who are detained against their will. There has been case law on this and the European Court of Human Rights now demands that changes be made in our own legislation. Not the least of such changes must be a person's ability to challenge their deprivation of liberty.

Section 106 of the Bill restricts the application of this Bill in a wide range of areas, including marriage and voting. Again, this is in conflict with the UN convention which states that persons must enjoy legal capacity in all areas of life. I have already referred to a change in attitude that this Bill signals. In that regard, I ask the Minister to reconsider the name of the Office of Public Guardian, which suggests that we are returning to the older paternalistic view that we are working to move away from in this legislation.

Outside of any concerns with the content of the legislation but as essential to its operation as any provision within it is the question of funding about which we need clarity. Several aspects of this Bill ranging from the issue of legal aid needed by those wishing to access its provisions to the Office of Public Guardian will require solid and significant commitments with regard to funding from the Government. There will be little point in advancing such legislation only to find that its provisions remain out of reach or insufficiently enforced to deliver on the promise it contains.

Sadly, this Government has shown little commitment to protect funding to the disability sector and the recent budget only demonstrated this. These measures included a savage 20% cut to the respite care grant, increases in prescription charges and the reassessment of entitlement to medical cards that has affected many persons with a disability. These have been the cause of significant anxiety and the refusal to reverse some of these decisions has challenged the ideals of living in a republic. The true testament of the Government's commitment to the disability sector would be a decision to reverse these cuts.

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