Matt Shanahan (Waterford, Independent) | Oireachtas source

The Assisted Decision-Making (Capacity) (Amendment) Bill 2022 is complex legislation designed to amend the Assisted Decision-Making (Capacity) Act 2015. Essentially, the Bill proposes to bring an end to wardship in Ireland, which is most welcome. Many of us will be aware of the historic, and perhaps also the contemporary, nature of wards of court, where young adults were incarcerated in institutions oftentimes for a large duration of their lives and without any assessment of their own thoughts or feelings, or their ability to function or act independently in wider society. Anything that sets this aside is to be welcomed.

The Bill also appears to propose replacing that system with an assessment system based on a functional approach, that being where capacity is presumed and where the burden of proof legally rests on rebutting that assumption. This must be teased out through the course of it. I know that the Minister hopes the legislation will give people experiencing diminished capacity the opportunity to participate more equally and meaningfully in our society and ensure that they have greater power to direct their own lives in an independent and dignified manner. It would be very hard for any of us to say we would not be supportive of legislation that could deliver that. In order to achieve this, the Minister and the Minister of State are proposing a series of tiered decision-making supports that will assist in arriving at best outcomes for the clients involved. Indeed, reference was made to Ireland's clear obligation under the UNCRPD, and that we must abolish wardship. Enacting this Bill will allow for the DSS to operate. The DSS will oversee the different tiers of support under the legislation.

The Minister said it will be its responsibility to make these supports available to those who need them and is proposing to give it a supervisory and safeguarding role in such arrangements. It seems this DSS will have significant powers. It will be allowed to draw up its own administrative procedures involving informal complaints procedures without the requirement of going to the courts. In addition, it will have a reporting function. These are heavy statutory provisions and the Government has gone to extreme lengths to ensure these will be safeguarded and operationalised.

The Bill also proposes to deliver a new system for creating enduring power of attorney. The Government is proposing a two-tier system where a person may register their wish to create a power of attorney with the DSS while they have full use of their mental faculties. If and when an individual loses mental capacity, their legal representatives will be able to contact the DSS to enact such power of attorney status, subject to the usual medical and legal safeguards. This is to be welcomed. Does it also extend to people who are not disabled? Can this provision be widened to apply to the public at large? I also welcome the additional effort to improve employee participation in the public sector by increasing public sector employment of people with disabilities to 6%. This is a very progressive move.

On balance, the Government is trying to deliver progressive legislation but I have to add my concerns to those that have been voiced already. They largely relate to the amount of communication and interaction with disability groups to understand their fears and sensitivities and to ensure the schemes proposed meet with their approval. In advance of amendments to this legislation being tabled, I urge the Minister to reach out to such representative groups and bodies and deal with their concerns before any legislation is passed or enacted. The purpose of this legislation, as the Minister has outlined, is to significantly improve the equality situation for those with some degree of disability. How can it hurt to listen to and deal with these groups' concerns? Doing so could and should make for better legislation. Nobody in this House wishes to be dealing with the effects of bad law. We have had many examples of that over the past decades. I acknowledge what the Government is trying to achieve with this Bill, which is to be welcomed, but my concerns relate to those for whom this legislation is being proposed. They must feel they have been fully engaged regarding it.

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