Mark Ward (Dublin Mid West, Sinn Fein) | Oireachtas source

Sinn Féin supports the need to reform how wardships of court are legislated for in the State, but the Government has missed the opportunity to make Ireland a leader in capacity legislation and to fulfil our obligations under the UNCRPD. Sinn Féin will table a number of amendments to make this legislation inclusive, equal and more human rights compliant. The fact that this Bill also repeals the Marriage of Lunatics Act 1811 and the Lunacy Regulation (Ireland) Act 1871 says enough to show that updating the legislation is long overdue.

I am in a unique position when it comes to this Bill because I am a member of both the Joint Committee on Children, Equality, Disability, Integration and Youth and the Joint Sub-Committee on Mental Health.

We have the Assisted Decision-Making (Capacity) (Amendment) Bill on the agenda of the Committee on Children, Equality, Disability, Integration and Youth, and the mental health sub-committee is undertaking a review of the Mental Health Act 2001. Both are extremely important and complicated pieces of legislation. We have a chance to make Ireland a leader in legal capacity reform, but I am afraid the legislation before us is, as I said, a missed opportunity. The Assisted Decision-Making (Capacity) (Amendment) Bill the Government proposes is not compliant with Article 12 of the UNCRPD because it allows for an individual's legal capacity to be denied based on an assessment of his or her mental capacity. This exclusion is discriminatory towards people with severe and enduring mental health difficulties or psychosocial disabilities. Deputy Rabbitte is the Minister of State with responsibility for disabilities, yet this Bill excludes people with psychosocial disabilities. The Minister of State is also responsible for equality. Where is the equality in this? The argument that the Government expects that the reform of the Mental Health Act 2001 will deal with this simply does not wash. The Mental Health Act has not been reformed since 2001. The principal Act we are dealing with is from 2015, seven years ago.

In the meantime, people who come under the Mental Health Act do not have the same rights as other people with disabilities when it comes to advance healthcare directives. The use of advance healthcare directives must be awarded to those who come under the Mental Health Act. If that does not happen, it could mean, in layman's terms, that if a person who comes under the Mental Health Act goes to the trouble of doing an advance healthcare directive, it will not be worth the paper it is written on. For example, if a person states in their advance healthcare directive that they do not consent to electroconvulsive therapy, ECT, also known as electric shock treatment, and they are subsequently detained under the Mental Health Act, their wishes may not be followed. That could happen very easily. It is already happening. In 2020, 20% of all ECTs administered in this State were done without consent, with 442 patients subjected to this treatment without their consent. As the legislation stands, people who are involuntarily detained do not have the right to have their advance wishes about treatment respected, even though they had the capacity to make decisions about their mental healthcare and treatment at the time of making the directive. No other group of individuals is specifically excluded from this legal right.

Another issue we have, which we mentioned during pre-legislative scrutiny, is the rushed process for this legislation. No one wants to delay this legislation, but we must get it right. We must also ensure that everyone, particularly those affected, namely people with a disability, has a right to fully understand the legislation. During pre-legislative scrutiny, members of the committee were asked to submit their questions early to members of disability organisations who were appearing as witnesses before the committee. I was one of those who took part in that process. The early submission of questions allowed the people with disabilities the time to understand the questions and to prepare their answers. That gave us a really telling insight into how this legislation will affect people with disabilities. I thank Peter Kearns from Independent Living Movement Ireland and Joe McGrath from the National Platform of Self Advocates for telling their stories. As Mr. McGrath said, however, they are allowed to participate only in storytelling and not in decision-making.

I am a Deputy, I have two staff members, I do not have an intellectual disability and I have found this legislation extremely complex and very difficult to understand. The quick timeframe has made this even more difficult. I ask Members to imagine for one minute they are a person with a disability who wants to be able to understand and to partake in this legislation that will ultimately affect their lives. I ask them to imagine how that feels.

The committee report recommends that we must ensure accessible and inclusive processes of consultation and that every effort should be made by Departments, in compliance with the public sector equality and human rights duty, to carry out meaningful engagement with those directly affected by legislation prior to publication. In the case of legislation impacting disabled people, it should be developed in line with the UNCRPD. In my opinion, and in the opinion of the people in disability organisations to whom I have spoken, that simply did not happen. We are back to patting disabled people on the head and saying, "Thanks for your story, but we will take over from here."

I spoke to Joe McGrath again on Tuesday, and one thing he said to me made more sense than anything else I am after hearing. The reason we are amending this legislation now and the reason we have a constitutional challenge is that the 2015 legislation was flawed. Let us therefore take our time and get it right this time. The Bill does not recognise the need for meaningful engagement with people directly affected by this law. Another example of this is that it requires IHREC to engage with the National Disability Authority in carrying out its monitoring role under the UN Convention, rather than IHREC engaging with organisations in which the likes of Joe and Peter are involved. I support the need to reform this legislation but I feel that the Government has missed the opportunity to have the voices of disabled people and people with psychosocial disabilities at the heart of this legislation. The Minister of State had a 20-minute speech and I did not hear one voice of a disabled person in that speech, which is very telling. As Joe McGrath has said, and I would say he has said it to the Minister of State as well, "There should be nothing about us without us." They need to be included.

I welcome that the committee's recommendation on pregnant women and advance healthcare directive has been taken on board. That is very welcome, but we need more. This Bill is like having an open goal and turning it into an own goal: it is very close but not close enough.

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