Anne Rabbitte (Galway East, Fianna Fail) | Oireachtas source

I move:

"That the Bill be now read a second time."

I think my speech is coming.

I welcome the opportunity to introduce the Assisted Decision-Making (Capacity) (Amendment) Bill 2022 to the House. I look forward to this afternoon's debate and hearing the contributions of Deputies on this important legislation. I thank all those who have engaged with the preparation of the Bill, especially my colleagues on the Oireachtas Joint committee who gave their time to pre-legislative scrutiny for the general scheme. The committee’s report was carefully considered in the final preparations of the Bill. The purpose of this Bill is to amend the Assisted Decision-Making (Capacity) 2015 and to allow for its commencement. This will bring to an end to wardship in Ireland and usher in a new era where capacity will no longer be approached from the out-of-date and archaic status approach but instead be assessed on a functional basis. By the status approach to capacity I mean the current approach under wardship where once a person is found to lack legal capacity in one context he or she is deemed to lack capacity in all contexts. When I say the proposed legislation will move us towards a functional approach, I refer to an approach where capacity is presumed and where the burden of proof rests on rebutting that presumption. Our decision-making laws are over 100 years old. Ultimately, wardship is a disempowering system that places a third party’s assessment of a person’s best interests above the person’s own will and preference.

The proposed legislation will give people experiencing diminished capacity the opportunity to participate more equally and meaningfully in our society and have greater power to direct the course of their own lives in an independent and dignified manner. It will replace wardship with a series of tiered decision-making supports that will provide the level of assistance and support a person requires with regard to particular decisions at particular points in time and grounded in respect for the will and preferences of the person being supported. Given the impact the legislation will have on people’s lives, I cannot overstate the importance of the enactment of this legislation. We have been waiting a long time to commence the 2015 Act. Now is the time to make these critical decision-making supports available for people who need them. We have a clear obligation under the United Nations Convention on the Rights of Persons with Disability and we have a clear commitment in the programme for Government to abolish wardship. Beyond that, passing this legislation is the right thing to do for our citizens and I believe this House knows that and agrees with me when I say that.

The enactment of this Bill and commencement of the 2015 Act will allow for the decision support services, DSS, which is the organisation that will operate the progressive provisions of the Act, to become operational. The DSS will play a critical role in ensuring the different tiers of support under the act are available to those who need them and will have a supervisory and safeguarding role in relation to those arrangements. It is also vital people who want to avail of this decision support have the right information and systems available to them and the decision support services will play a key role in this regard too.

Before I move on to providing an overview of the Bill’s provisions, I will provide a short overview of some of the key changes foreseen under the Bill. The general focus of the Bill is to streamline processes and improve safeguards for those who will rely on the provisions of the 2015 Act. In that sense the Bill does not depart from the broad policy of the 2015 Act itself; rather it will enable the better functioning of the Act once it is commenced. The Bill intends to ensure the bureaucracy and administrative burden of the new system is kept to a minimum. Newly-included provisions will allow for the DSS to draw up its own forms and administrative procedures, as well as to resolve certain complaints informally without the need for automatic referral to the courts. The decision support service will also provide for the remuneration of decision-making representatives who will be made available to those who might not be able to afford to pay for a decision supporter. This is an important change in terms of equality of access to decision supports.

The Bill provides for persons with capacity difficulties to participate in health research, which is an important entitlement for all persons, and will allow for the circumstances and lived experience of people with diminished capacity to inform research and policy. Significantly, a new system for enduring powers of attorney, EPA, is being introduced. It will create a two-stage process for creating an EPA. This will see a person being able to register the EPA instrument with the decision support services when he or she has the capacity so that any questions on the operation of the power or the intent of the donor can be clarified when the relevant person still has capacity. When a donor subsequently loses capacity his or her attorney will be able to notify the DSS, which will examine the notification and supporting documentation to ensure the relevant person has in fact lost capacity, along with other matters of a safeguarding nature. Provisions will allow persons to make changes to their enduring power of attorney before it comes into force or to revoke if they no longer wish to have it activated. The enactment of the Bill will see the removal of restraint provision in private settings and will bring about the strengthening of, and protections for, the rights of wards when being discharged from wardship.

I now move to the structure of the Bill itself. The Bill is divided into three Parts. Part 1 sets out the Title of the Bill and provides for commencement orders for the coming into force of the Bill once enacted. Sections 66 and 67, relating to Part 8 of 2015 Act, will be commenced by my colleague, the Minister, Deputy Stephen Donnelly. This reflects the fact Part 8 of the 2015 Act remains the responsibility of the Minister for Health.

Part 1 sets out key functions and provides for the repeal of certain sections of 2015 Act. Among these deletions is the removal of the requirement for the director of the decision support services to exercise functions in respect of existing wards, chiefly regarding the director’s role under the 2015 Act regarding the management of estates and assets of relevant persons. Further repeals under this Part remove provisions permitting the use of restraint in private settings. These had been included in the 2015 Act to give guidance for exceptional circumstances but are being removed in the amendment Bill. Part 1 of the amendment Bill will also remove provisions that are no longer required following a change to a two-step enduring power of attorney process and remove an amendment to Mental Health Act 2001 which the Department of Health will now address as part of wider review of that Act.

Part 2 deals with amendments to the 2015 Act. These amendments include providing for a person with capacity to participate in healthcare research. This excludes clinical trials, which are separately regulated. Attorneys appointed under an EPA will be prohibited from making treatment decisions, which will give clarity to medical professionals that a designated healthcare representative is the appropriate decision supporter for medical issues. While a recommendation in pre-legislative scrutiny advised against this, it is important that there be absolute legal clarity for medical professionals who need to have one person with the authority to make what can be very sensitive decisions.

Part 2 introduces a range of amendments that deal with streamlining the processes of the DSS, allowing for it to have greater control of its own administrative procedures in relation to the appointment of decision supporters under the Act. This includes allowing the DSS to develop its own forms and procedures regarding a range of different processes. This will lead to better efficiency and responsiveness by the DSS in the interests of persons relying on decision support arrangements. The DSS will also maintain a register of decision support agreements, which can be accessed by certain persons and bodies under the Act and which will ensure well maintained and secure retention of records and agreements.

As stated earlier, the Bill introduces a new two-stage EPA process whereby the donor creating the EPA will first register it with the DSS while he or she has capacity. When the donor loses capacity, his or her attorney will notify the DSS. The EPA will come into force following the acceptance of that notification by the Director of the DSS, once it has been reviewed. Provision is made for the donor to make changes to the EPA at any stage prior to notification, including revoking the agreement, while also providing for additional safeguards within the overall process. This change requires a number of technical amendments across a range of provisions amending the 2015 Act.

Part 2 introduces additional and improved safeguards. The guiding principles provided for in the 2015 Act have been expanded to apply to all decision supporters equally, which is an important safeguard of the expression of the relevant person’s will and preference.

In line with recommendations from the pre-legislative scrutiny process, proceedings under the Act will revert to being held in camera, which better protects the rights of the relevant parties.

This is not a departure from the 2015 Act but, rather, from what was in the general scheme of the Bill. Changes to the Bill will disqualify persons convicted of any offence against the relevant persons or their child from acting as a decision supporter under the Act.

The decision-making assistant role has been clarified so that a decision supporter of that category will assist rather than advise a relevant person, while a new section is introduced to create an offence where fraud or coercion is used in respect of a decision-making assistance agreement. The DSS will draw up procedures and set out conditions where a trust corporation is acting as an attorney for a donor creating an EPA. Temporary prohibition orders and offences for the neglect or ill-treatment of a relevant person by a decision supporter are also being introduced. The director of the DSS will be given additional powers to investigate and informally resolve complaints while still allowing for a referral to be made to the courts for formal legal resolution. This change should ensure that complaints can be dealt with more efficiently while easing the burden on the courts system. A desire for informal resolution of the complaints is a recommendation of the pre-legislative scrutiny process and I am happy to have been able to include it in the Bill.

The Bill will remove the reference to cognitive ability in the 2015 Act because such language is inappropriate in the context of the Act. Part 2 provides for the removal of provisions in the 2015 Act which had provided for the use of restraint in private settings. A number of amendments provide for improved protections for current wards of court exiting the wardship regime. Where the exiting ward may only require a co-decision maker but none is available, an appointed decision-making representative will now endeavour to jointly make decisions with the person, insofar as is practicable. Wards will no longer have to seek leave of the court to apply for a review of their case, and they will be afforded the same procedures and entitlements under the Act as a person who is not a ward. Review periods for wards will also be aligned with reviews of other relevant persons under the Act and wards will be present in court for their reviews, ensuring parity.

Part 3 concerns amendments to other Acts made by the Bill and is chiefly concerned with Ireland’s important obligations under the United Nations Convention on the Rights of Persons with Disabilities, UNCRPD. The provisions in this part of the Bill are chiefly taken from elements of the Disability (Miscellaneous Provisions) Bill 2016, which lapsed with the previous Dáil. Ireland ratified the convention in 2018 and, as Minister of State with responsibility for disabilities, progressing our realisation of the convention has been an absolute priority of mine. I am therefore particularly pleased to be able to bring some of the provisions from the 2016 Bill forward again today.

The Assisted Decision-Making (Capacity) (Amendment) Bill will amend the Juries Act 1976 to allow persons with hearing impairments to sit on juries. Part 3 will amend the Electoral Act 1992 by removing the prohibition relating to persons of unsound mind from standing for election to the Dáil. Amendments to the establishing legislation for the National Disability Authority are made which allow for staff of that body to become civil servants of the State. Amendments to the Irish Human Rights and Equality Act will see the Irish Human Rights and Equality Commission, IHREC, become Ireland’s dedicated UNCRPD monitoring body. It will be supported by the National Disability Authority in that role. The Bill will provide for the gradual doubling of the minimum statutory target for the employment of persons with disabilities in the public sector, which will double from 3% to 6% on a phased basis by 2025. Amendments are made to allow a partial freedom of information, FOI, exemption relating to investigations undertaken by the DSS. This is not a UNCRPD measure but is in this Part of the Bill as it relates to changes to the Freedom of Information Act 2014. Records of the DSS not relating to investigations will fall under the scope of that Act.

I will now address the pre-legislative scrutiny report, and I thank the committee for its consideration of the general scheme of the Bill. The pre-legislative scrutiny report highlighted the need to ensure that UNCRPD obligations are acknowledged and adhered to by the DSS and by my Department regarding consultation, terminology and accessibility. I am very aware of these concerns and the importance of these issues for day-to-day integration and participation of persons with disabilities. It is important to recognise that these obligations already rest on the State following Ireland’s ratification of the UNCRPD. To be clear, there is an existing obligation on the DSS, on Departments and on public bodies to abide by the convention and to ensure that obligations in international law are met. I can assure the House that my Department and the DSS are keenly aware of their obligations under the convention, and I will ensure that all the levers in the corporate governance relationship between my Department and bodies under its aegis and in receipt of funding will be used to ensure we meet those obligations.

The pre-legislative scrutiny report recommended that the interaction between the 2015 Act and persons whose involuntary treatment is regulated under Part 4 of the Mental Health Act 2001 should be examined. The Government agrees with the committee that there should be parity here and there is no question of not addressing these concerns. Following the passage of the original 2015 Act, it was decided that the necessary provisions should be included as part of extensive amendment to the 2001 Act. I am aware that pre-legislative scrutiny is now ongoing in respect of legislation to amend the 2001 Act, and I will work with my colleague, the Minister of Health, to implement the pre-legislative scrutiny recommendation.

Pre-legislative scrutiny highlighted the need for amendments to section 85(6), which concerns the applicability of advance healthcare directives for pregnant women. I can commit to a Government amendment on Committee Stage or Report Stage that will repeal that provision of the 2015 Act and ensure parity in this regard is delivered in the amendment Bill. Pre-legislative scrutiny also highlighted the provision of legal aid and assistance throughout the Act. With the assistance of my colleague, the Minister for Justice, I can commit to an amendment on Committee Stage or Report Stage that will extend the provision of legal aid to persons exiting wardship under Part 6.

As we approach the commencement date of the 2015 Act and the operationalisation of the DSS in earnest, I am aware of a number of practitioner concerns regarding transitional arrangements and the interim care arrangements and frameworks for persons experiencing capacity difficulties now and how they may need support. In light of the need for continuity of care, Government amendments will be brought forward to allow for wardship applications that are submitted prior to the commencement of the 2015 Act to be processed to completion. The amendments proposed will take account of how such persons will subsequently transition out of wardship at the earliest juncture and in line with the overall three-year timeline for the abolition of wardship, which will not be affected.

The Bill will allow for the commencement of the Assisted Decision-Making (Capacity) Act 2015, which will bring wardship in Ireland to an end. The decision support service will become operational and will be in a position to operate more efficiently and with more streamlined processes. Persons exiting wardship will have improved protections, safeguards and procedures. As a country, we will further meet our obligations under the UNCRPD. We will end wardship and move away from a disempowering best-interests approach in favour of identifying and respecting the will and preference of persons experiencing capacity difficulty.

I commend the Bill to the House.

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