Seán Sherlock (Cork East, Labour) | Oireachtas source

There is a certain conflict going on in my mind in respect of this Bill because while one is minded to support it, the fact is that so much appears to be left out or has not come under greater scrutiny prior to its publication and promulgation here within the House.

Members feel they are being rushed into supporting legislation they believe may not adequately address the entirety of the issues, as articulated by previous speakers. We feel as if we are being rushed into a process. While recognising the importance of the legislation, we believe it is being rushed for reasons of political expediency at this stage. We are asking ourselves, why the rush now? Why not take a little more time to consider the issues therein so we can be sure we can all support the Bill and have a very clear and clean conscience when doing so?

There is a paper that is a very useful and objective critique of the Bill before us. It is from the Centre for Disability Law and Policy at the National University of Ireland, NUI, Galway. I will quote directly from it because it exactly summarises the concerns I have. I will openly admit to not having the ability to interrogate this Bill properly, and not fully having the skill set required of me as a Member to be able to interrogate every dot and every line of this legislation. I wish for more time to learn more about what it is we are expected to pass. I openly admit I am no specialist in this area of law. I would have liked more time. Notwithstanding that, there is paper, Respecting Human Rights in the Assisted Decision-Making (Capacity) (Amendment) Bill, which is a briefing note drafted by the Centre for Disability Law and Policy at NUI Galway as of 30 May.

The Bill does not redress some major flaws in the original Assisted Decision-Making (Capacity) Act. [It] does not extend Advance Healthcare Directives fully to those under the Mental Health Act; [it] does not extend any of the Act’s advantages to young people aged 16 and 17; [it] does not remove the deleterious effect on the unborn language despite the Repeal of the 8^thamendment to the Constitution; [it] has not removed the functional test of mental capacity which has been deemed a human rights violation by the UN Committee on the Rights of Persons with Disabilities; [and] The Assisted Decision-Making (Capacity) Act 2015 is as it stands, is not compliant with Article 12 of the UN Convention on the Rights of Persons with Disabilities because it allows for an individual’s legal capacity to be denied based on an assessment of their mental capacity. The Amendment Bill is a missed opportunity to address this, and position Ireland as a world leader in legal capacity law reform.

The Bill makes it more difficult for people to access and use the supports they would like. [The Bill] does not allow donors to grant health decision-making powers in enduring powers of attorney, makes them create a separate advance healthcare directive instead; Additional criminal offence is unnecessary and will deter potential decision-making assistants [and] the Bill does not respect core human rights. [It] does not contain an explicit prohibition on all physical and chemical restraint; [and the Bill] continues to exclude many disabled people from jury service in a discriminatory manner.

The Bill does not recognise the need for meaningful engagement with people directly affected by this law. [It] delegates powers to Decision Support Service without mandating the office to engage meaningfully with disabled people, older people, and people with experience of mental health services in exercising these powers. [Please bear in mind, from a syntax and grammatical point of view, that I am quoting directly]. [It] requires [the] IHREC to engage with the NDA in carrying out its monitoring role under the UN Convention, rather than mandating IHREC to engage with disabled people’s organisations, [and the] Department did not conduct any public consultation on this Amendment Bill

There are a plethora of issues here that require further interrogation. I have no doubt that will occur on Committee Stage. It will be anticipated there will be many amendments to this legislation. That is the first part of the Bill I wanted to speak to.

I will also speak to correspondence I received from Ms Mary Farrell, who is the spokesperson for Justice for Wards. Deputy Ó Laoghaire referred to her earlier. She is somebody who has been in contact with many of us down through the years and whose perspective we all inherently appreciate and understand. We have all tried to advocate on her behalf and that of the organisation she represents. Ms Farrell and her group have also expressed serious concerns about this Bill. I will read into the record some correspondence I have received from her dated 25 May 2022:

Dear Sean

We met on 27th April last when Justice for Wards held a meeting outside the Dáil to highlight our concerns related to Wards of Court matters. I have since written to you concerning our request to meet with the Minister for Justice [I know the Minister of State will tell us this does not come under the Department of Justice but the Department of Health, which we accept] to discuss those concerns with a view to having them resolved prior to the commencement of the Decision Support Service and discharge of Wards. There are people from all parts of the country involved, including your own area and because of their unique circumstances many cannot go public with this so as not to identify Wards.

We would be grateful for a response.

This is the other side of the coin, so to speak. We are engaged on two fronts - ensuring that the legislation underpinning the DSS and related areas is appropriate and ensuring that the DSS is fit for purpose. There has been no engagement with Justice for Wards, Wards of Court or their families by either the Office of Wards of Court or the Decision Support Service. Many families have no idea what is happening and if the online joint presentation directed at Wards and their families yesterday is any indication of the type of communication, engagement and information we are going to get, it demonstrates how out of touch they are with these people and their concerns, needs and understanding of these changes. Many do not have Internet or resources to engage.

That is also a point worth bearing in mind and is a genuine perspective. Ms Mary Farrell further corresponded with me on 25 May, when she sent me a copy of correspondence she sent to the Minister for Children, Equality, Disability, Integration and Youth, Deputy O'Gorman, dated 25 May. Again, it is an outlining of her concerns that I will read into the record:

Dear Minister O'Gorman

I am writing to you as Spokesperson for Justice for Wards, to express our concern ... [that] the Draft Codes of Practice on the Assisted Decision-Making (Capacity) Act 2015 which have been presented for your approval by the Decision Support Service. In short, we believe the Draft Codes are not fit for purpose and should not be published in their current form, and we urge you not to approve these Drafts for publication until significant changes have been made.

Members of Justice for Wards have been campaigning for changes to the archaic Wardship system for many years – since the State signed the UNCRPD in 2007 to the eventual signing of the Assisted Decision-Making (Capacity) Act 2015. We now know that the finish line was to be a long way off for those who were locked into the Wardship system for their lifetime with no route out. This matter has rumbled on for ... too long, with delays at every turn, and now, after 7 years, the Decision Support Service’s Codes of Practice are of concern. [I am merely reading into the record the perspective of somebody who is directly involved with this. I will appreciate the Minister of State's response.]

The consultation process for the Draft Codes was not fully accessible to, or meaningfully inclusive of, people directly affected by this law – including and particularly the current main stakeholders, Wards of Court, their Committees and families; disabled people; people with intellectual disabilities; people with experience of mental health services; neurodivergent people and older people. The periods for which the Draft Codes were open for public consultation was too short, submissions were only permitted in written formats, and the questionnaires were not made available in alternative formats such as Easy to Read. This inaccessible consultation has been criticised by the Oireachtas Committee on Children, Equality, Disability, Integration and Youth in its Pre-Legislative Scrutiny report on the Assisted Decision-Making (Capacity) Amendment Bill. There has been no engagement by the Office of Wards of Court or the Decision Support Service with Wards, their families or committees. This is very concerning. It does not bode well for future communications.

The content of the Draft Codes is not compatible with Ireland's obligations under human rights law, specifically the UN Convention on the Rights of Persons with Disabilities. In our view, the Draft Codes do not accurately represent the spirit and letter of the Assisted Decision-Making (Capacity) Act, which was intended to give people more choice and control over their decision-making, not less. In a number of places the Draft Codes give the impression that a wide range of individuals (including legal professionals, financial professionals and healthcare professionals) can assess a person's capacity under the Act, when in fact the Act makes clear that only the court is empowered to declare a person to lack capacity. The core human rights value of respect for the will and preferences of the person, which was hard-fought for in the 2015 Act [and to which the Minister of State has already referred], is not sufficiently prioritised across the Draft Codes, and there is little to no guidance to those acting in roles under the Act on how to discover, interpret, and act upon, the person's will and preferences.

We have tried to engage with the Decision Support Service but our efforts have not been well received.

The Decision Support Service has not produced any document as a result of the public consultation outlining the key messages received and proposed actions as a result.

We know that people have been waiting a long time for reform of Ireland's capacity laws, especially Wards and their families but to press ahead with the publication of these Codes without meaningful engagement with people directly affected by this law, will ultimately be counterproductive for everyone involved. We once again urge you not to approve these Draft Codes when presented to you, and to request the Decision Support Service at a minimum:

- Publish the key findings from the public consultation and actions to be taken as a result

- Undertake meaningful engagement with people directly affected by the Act with a view to making further changes to the Draft Codes to bring them into greater compliance with Ireland's human rights obligations, in a transparent and open process

We are happy to provide you with further information, should you need it, to support our concerns, or to discuss this issue further with you and your officials if appropriate by phone, email or virtual meeting.

Yours sincerely

Mary Farrell

Spokesperson

Justice for Wards of Court

Arising from the intervention I have just made, could some form of communication be opened up with Justice for Wards of Court? If only to intervene or engage with the group on its concerns, that would be a good day's work. That is my only request.

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