Catherine Connolly (Galway West, Independent) | Oireachtas source

I welcome the opportunity to speak on the Bill and welcome the fact that I have time to do so. It is the first time there has been time to consider the Bill. It was published on Monday and we are discussing it today. The note we got from the Oireachtas Library today points out that its staff did not have enough time to devote to the Bill. Let us place this in perspective. The 2015 Bill represented a seismic change, in theory. We are talking about two Acts from the 19th century. One is the Marriage of Lunatics Act 1811, which, the Minister tells us in the note we got, was repealed in February 2021, I think. It took 210 years to repeal that legislation. The other legislation is the 1871 Act, which was done away with by the 2015 Act after 144 years - but not really, because that Act was never brought into operation. Now, therefore, 151 years later, we are repealing the 1871 Act. I say that to put this in context.

Then a Bill is published on Monday and we are supposed to work through it. My background is becoming increasingly more distant to me because I packed it in in 2016. Even then I was no expert on statutory interpretation; I had a different area of expertise. We are now presented with almost 70 pages of an amending Bill, in three Parts and 87 sections, to amend an Act that never came into operation. We are talking about vulnerable people who may lack capacity, but the real question that is raised is where the lack of capacity is. I have often said to the Minister of State, Deputy Rabbitte, that she has inherited a situation. I pay respect to her bona fides, but here we are now rushing through something after, I think, 210 years and 151 years, and suddenly we have to pass this Bill very quickly without really any discussion. That is an impossibility. I simply cannot do that job as a parliamentarian, with the best will in the world. Even with my background, I still do not understand quite a lot of this because I need the Act we never enacted or implemented before me as well as this Bill, going between the two.

The system that has been set up to do this is the cross-party committee. It produced a report, which I took the trouble to read. Like the Library & Research Service, the committee said it did not have enough time. It makes its recommendations with that caveat. Its consultation process happened over Christmas, and the meaningful consultations it should have had did not really happen. Then it makes 64 recommendations and identifies eight issues. I pay tribute to the committee. I look to see if the recommendations and the eight issues are being implemented and have been taken on board. I turn to the Library and consult its Bill digest and I look to see which of the recommendations have been implemented. Again, I pay tribute to the Library & Research Service. In short, the digest tells us that, of the 64 recommendations, 34 have not been accepted or implemented in the Bill at this point. In respect of 18 of them, the impact of a key issue is not clear within the Bill or insufficient information is available to the Library & Research Service to make an assessment and, therefore, it cannot help us. In respect of seven of the recommendations, the Bill may be described as adopting an approach consistent with the key issue. In respect of four, a key issue has clearly been accepted. Therefore, out of 64 recommendations, the Bill digest tells us that four have been clearly accepted. Over half the cross-party committee's recommendations have been ignored and only four have been incorporated into the Bill.

I do not wish to be negative. I realise the seismic change the 2015 Act represented. I pay tribute to the officials involved. This is a complex matter. I have no hesitation in saying that. My difficulty arises from the ramming through of the Bill at this point, after all these years, without proper consultation. It is not just me saying that; the committee that did the pre-legislative scrutiny of the heads of the Bill tells us that it did not have enough time and has serious concerns.

We are dealing with wards of court here; it is unclear how many. Áine Flynn, director of the Decision Support Service, DSS, said in December 2021 that almost 2,000 persons have been declared wards of court since the 2015 Act was enacted. We have the 2015 Act with its seismic change and clear recognition that the treatment of wards of court, under terrible 19th-century lunacy legislation, was totally inappropriate and was not allowing this country to comply with our legal obligations under any of the international instruments. We then brought in the Act but did not implement it. Between that time and the time of the heads of the Bill, we did not interact with any disability group on the ground either to find out what the inadequacies of the 2015 Bill were or why it was not enacted. I repeatedly asked questions through my colleagues who work with me in my office, such as when this would be enacted, when the DSS was set up and so on. We kept up the pressure as best we could.

Now we come to this Bill. I thank the Minister of State for the briefing yesterday, which was somewhat helpful. She also gave us a briefing note stating that the urgency was a constitutional challenge. I asked about the nature of the challenge, not about its details. I realise the sensitivity of this. I did, however, ask where the urgency came from. Was the case due to be heard? When were the proceedings initiated? The Minister of State gave me a note stating that in December 2019 a constitutional challenge was taken by an individual against the Government in respect of both the Marriage of Lunatics Act 1811 and the Lunacy Regulation (Ireland) Act 1871, which underpins wardship in the State. I take from that note that the proceedings were initiated in 2019 against the 19th-century legislation, which is completely unacceptable on every level. I get an inkling of where the impetus to change came from. The Department of Justice of the time was not a proactive one, but there was a legal challenge. The Minister of State can correct me if I am wrong, but the Government has conceded, I understand, that it will have no chance of defending this case. It has conceded.

The Minister of State has given a commitment to counsel for the plaintiff - she can correct me if I am wrong - in regard to this legislation being enacted in June. What I do not understand is why it is June, without proper consultation. Was the case due to be heard in June or July? Why is there secrecy surrounding this? At the very least, we need openness and accountability. It is interesting that there is no mention in the speech of the Minister of State, Deputy Rabbitte, today of that case being the impetus for the change in legislation. Parallel to that, she tells us that a lot of the organisations have put in huge work, which I appreciate - the Health Service Executive, the banks and the various organisations that will be impacted by it. They were led to believe it would be June so, therefore, magically, it has to be June. I do not diminish the work that has been done, but what really concerns me is that the same effort and recognition has not gone in to the people on the ground who know best about this area. I am no expert on this but I am able to identify problems and concerns and I have a lot of them. I have no idea why extra emphasis is put on the amount of preparation that the banks, credit unions or housing officials have put in, as opposed to the people on the ground. Could the Minister of State tell us what is the urgency for June, after we have waited 347 years combined, when we put the two together? I am being disingenuous. We have waited from 1811 to 2021 and from 1871 onwards. How do we get this right in terms of what has happened?

In the meantime, I am told that other countries have moved on. This is courtesy of NUI Galway, which tells us that the centre for disability law and policy - I tend to listen to an organisation like that, as well as the other organisations that represent people with the spectrum of disabilities - have serious concerns in regard to the Bill. It also raises the constitutional challenge and the significance of that being tied in with an arbitrary date in June. It tells us that the Bill does not address the problem. I tried my best but I would be misleading the Minister of State if I said I discovered these concerns. I just did not have the time. It took me ages to read all of this, and I went back and read a document from 2017 produced by the Oireachtas Library & Research service, which asked how the Assisted Decision-Making (Capacity) Act would work. It will never work, because we are never going to enact it. That was May 2017, two years after the Bill was enacted. We were told it was a seismic change, a paradigm shift, a cultural shift and so on but the provisions were never enacted. The question must be asked: in God's name why was it not enacted? What happened between 2015 and 2022, when we are now faced with an arbitrary decision regarding June? The centre for disability law and policy has set out its concerns. I have numbered them and there seems to be at least 11 or 12 genuinely serious concerns.

The Bill does not address some major flaws in the original Assisted Decision-Making (Capacity) Act, although we have been told that this is the opportunity to do so. It was understood that they were to be addressed. It was pointed out that if someone makes an advance healthcare directive under the 2015 Act, stating that he or she does not want medical treatment, that will not be binding for a person detained under the Mental Health Act. In fairness to the Minister of State, she said yesterday that she accepts that, but it will not be in this Bill, as it must be under the reforming mental health legislation. I am not sure, but I accept what she says to me in that regard. It is a glaring gap, however.

Another glaring gap is that the Bill does not extend the advantage to people aged 16 and 17. A further glaring gap is that it does not remove the reference to the deleterious effect on the unborn, despite the repeal of the eighth amendment. I note that the Minister of State will bring forward an amendment, which I welcome, but it begs the question as to why that was in the Bill, given that we are talking about 2015 and 2022.

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, still remains in the Bill. We are told that the Act as it stands is not compliant with Article 12 of the UN Convention on the Rights of Persons with Disabilities, because it allows an individual's legal capacity to be based on an assessment of his or her mental capacity. It still has the substituted decision-making process, which as I understand is against the UN and what was set out in its explanatory memorandum and direction. It makes it difficult for people to access a new support they would like. I welcome the two-tier system in regard to the enduring powers of attorney. What I do not welcome is that there is now a parallel process where a person must make an advance healthcare directive entirely separate to the enduring powers of attorney. The system has been made more difficult and more bureaucratic. There has been a call for that to be deleted, which I fully support. The centre has problems with the additional offences. It says they are not necessary. When we spoke about this yesterday, the Minister of State talked about the silence in relation to the restraint as being a positive thing, or at least her advisers did. The centre for disability law and policy does not think it is such a positive thing, and it is asking for it to be specifically stated that restraint is not acceptable.

There are difficulties in relation to juries, although the Minister of State is telling us that it is an improvement. I have not had a chance to check it. At this point, I am simply parroting the concerns of the NUIG centre for disability law and policy. From what I have read, I have the greatest difficulty with the way assessments are to be carried out. However, I welcome the three-tier approach and I welcome the tenor of the Bill in terms of enabling and empowering. We will help somebody to assist him or her to make a decision, then there is a co-decision and the top one is where a decision is made for a person. That should be rare if we are going to go with the spirit of the Bill.

I am not sure about legal aid. It is not clear how that will be available. It is entirely unclear to me how we are going to deal with the number of people who have been declared wards of court. I will outline the total confusion that has been created. I have said on other occasions that we might get a clue from the date - 1 April. A notice in relation to applications for wardship was sent to barristers and solicitors.

In preparation for the commencement of the Assisted Decision Making (Capacity) Act 2015, the President of the High Court has directed that the Office of Wards of Court will stop accepting wardship applications...from the 22nd April 2022.

A direction was given to that effect. If we fast-forward to 12 May, the exact same language was used except it was to say that "the Office of Wards of Court will re-commence taking applications". We can imagine the utter confusion. One direction on 1 April says there will be no more wards of court and on 12 May applications for wards of court are to recommence. We try to be positive and work with the Minister of State and then we see all of this without any adequate explanation. What is the total number of wards of court? It seems that 2,200 have been created unnecessarily since 2015 when the Act was supposedly, in theory, to stop the wards of court system. Deputy Jim O'Callaghan was trying to clarify this as well. Is it 3,000 wards of court or 4,000? How are the courts going to manage that? The Minister of State mentioned something yesterday in passing to the effect that there would be a panel of judges over a three-year period. How are they going to manage that? What resources will be put into place? Who is going to pay for that? When medical evidence is required by the courts, will more and more come out of the estates of those who have been declared wards of court? While we are talking about this, I understand that there are funds in court of €1.46 billion.

Correct me if I am wrong, but this should all be set out for us. What is the total amount of funds currently under the wardship system that is presided over by the President of the High Court? What will happen to those funds? We know now that the director of the DSS, who happens to be female, will not deal with that because that competence has been taken from her. Where is the information on what will happen to those funds? Nobody has said. This is crucial, given what Deputy Boyd Barrett alluded to and what I have raised in the past. There are serious concerns.

I sat on the Committee of Public Accounts when a report came before it stating that the investments were made, not wisely, but that there was no question regarding them. The group has highlighted that no assessment was independently done of the decision-making and risk-taking around the investment of funds. There are questions relating to that. We ignore them at our peril, but that is what we are doing. We have no clarification on that. Will the Minister tell us what are the total funds being held by the High Court? Where will they go? Who will manage them? Will we outsource each one as a ward of court is transferred to the new system? What will happen in respect of all that?

I really want to work with the Government, but it is impossible to do so without proper explanations and without getting rid of the arbitrary date in June, given that we have waited 200 years or 170 years and, in particular, that other countries have done it better. We should have learned in the meantime that empowering and enabling is exactly what they mean. That is what we should be doing. The best people to educate us on that are those with disabilities or the organisations that represent them, and we have utterly ignored them. The Irish Human Rights and Equality Commission Act obliges us to consult with the disability organisations but not with other organisations. That is also unacceptable.

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