Michael Moynihan (Cork North West, Fianna Fail) | Oireachtas source

I welcome the opportunity to discuss the Bill. I also welcome the Minister and the Minister of State. We are talking about the basis of the decision-making capacity Act. On the 2015 Act and its non-enactment, we are talking about very complex legal issues. Previous speakers referenced Acts that have been there for almost 200 years. The Assisted Decision-Making (Capacity) (Amendment) Bill is very fundamental to the rights of individuals. While I welcome it, the Bill is also unearthing many challenges because, as public representatives, we have all from time to time dealt with families in situations where the law and trying to navigate it is very complex, especially for people who have lost the capacity to make decisions. The perception in the wider world may be that this just relates to elderly people, but it does not. It affects young people and people who, for one reason or another, including accidents or ill health, have reached a point in their lives when decisions have to be made.

The Bill will replace a system that is very outdated and that has been very challenging. We have seen people made wards of courts, where settlements or funding has been put in place, and how that has worked. It takes significant legal expertise and advice for families to navigate through that, when they look for to draw down funding for the needs of a person. I have seen families get completely frustrated by having to go back to the courts to make a case and so on. We have to be very mindful that we are talking about very vulnerable people at a very vulnerable time for families and everybody else. The least we might have is a very sensible pathway in order for them to navigate and get through the system.

We have to reflect very carefully on the legislation before us. It is the right thing to do at this time. It comes up week in and week out in all the discussions of the Joint Committee on Disability Matters. Two members of that committee are in the Chamber; Deputy Murnane O'Connor and the Vice Chair, Deputy Tully. We have discussions on the decision-making capacity Bill and they constantly look to get it through as its enactment will remove one of the major blockages to ratification of the UNCRPD optional protocol. It is very important that we do not delay that any further. The optional protocol is very important for everybody who has a disability. We need it ratified so the State can stand over the decisions it is making, and is seen to be at the coalface and seen to be embracing the UNCRPD, which is a very fine document. It is very important to have that as our foundation.

Any further delays in the ratification of the optional protocol are absolutely unacceptable. I expect and ask, if not demand at this point, that the Government, on the completion of the passage of this Bill through the Houses, does not delay the optional protocol by one iota. Feedback has come to me that various channels have to be gone through, and that the Attorney General's office and others are going through the optional protocol. We have ratified the UN convention for some time and the optional protocol has been a commitment. We now need to make sure that all Departments are up for ratification of it and that it is there as a mechanism and foundation for us, or an insight for people who are dealing with disabilities and trying to get answers, if the State is not providing proper services.

This leads me to the services in place for people with disabilities and people with intellectual disabilities. The Minister of State has been at the forefront in challenging the system. I commend her on the work she is doing. She is well able to take on the system but there is a major challenge regarding disabilities and services. It was highlighted in the past couple of weeks in respect of school places but that is really only the tip of the iceberg of what is there. On Thursday mornings, those of us privileged enough to sit on the Joint Committee on Disability Matters hear stories of the lived experiences of people with disabilities and the challenges they face in their daily lives. As a society, we need to open up to those challenges and ensure we are tearing down those barriers. The disability portfolio is moving into the Minister's Department. It is refreshing to see the Minister and the Minister of State side by side in the Chamber to listen to the debate and to take on board the concerns of Deputies, who are relaying the concerns of their constituents and those they meet at Oireachtas committees and elsewhere. It is very important that we look at the challenges out there.

We had a debate last week on the July provision and the money that was allocated to it, and the fear that the money might not be spent at this stage and the provision might not be provided in the way it could be. We need to be imaginative in how we look at it and in how we recruit people, including those going through college, such as occupational therapists, speech and language therapists and physiotherapists. Before they have completed their courses, they should be able to work under the July provision and gain very valuable experience for their degree courses in the work they are doing that will also allow them into the system. We need to ensure we are able to keep those people working in our country because our society needs it so badly. I ask the Minister and the Minister of State to ensure everything is done. I know the July provision comes under a different Department. There is also the issue of teachers who have completed two or three years of training who could be brought under it. We need to think outside the box.

The provision of care for people with disabilities has come to my attention over the past few days.

There comes a point in every family's life when there is a crisis. For example, when parents get older and one of them gets sick or passes away, a crisis arises in terms of providing respite or care for a person who needs it.

Evidence has come to me about some people who should be offered full-time contracts within the services not being offered any. Full-time contracts mean that people can depend on those contracts to go to their credit unions, banks or other lending institutions. These people have considerable experience of providing care for people with disabilities. We cannot afford to lose their expertise. We should be examining this matter from top to bottom. There are fantastic people providing a service that is second to none. We should hold onto all of them within our services and no one should be lost because of not being offered a full-time contract. As we enter June, it is wholly inappropriate that there are some people within the State's services who are not getting full-time contracts.

We are told that ample funding is available. If money is returned unspent to the Exchequer at the end of the year, it will be unforgivable because the services are in a shambles. When the Government was faced with unprecedented challenges over the past two years because of Covid, the whole of the Government worked together to meet those challenges head on. We do not see the same urgency being shown towards people with disabilities or meeting the challenges involved.

Down the years, many services were built on community initiatives under section 39 organisations. Good, well-intentioned people formed organisations built on community initiatives the length and breadth of the country. I could name some of them. The HIQA regulations, as well as other regulations, are important for ensuring that we can have confidence in the services being provided, but this situation has moved on a further stage.

I am straying from the topic of disability and capacity, but I wish to make a point. Ample funding is available for home care but there are no staff available. The problem is that good people are being lost everywhere in the services. Staff in section 39 organisations do not have pay parity, yet they are providing the exact same care as staff in section 38 organisations. They need to be kept within their organisations, but people are leaving them for the HSE or leaving the HSE for private practice. We must ensure that everyone is on board because we cannot afford to lose people. We should be looking at recruitment. If a multinational company came to Kiskeam – it might happen some day – there would be a recruitment drive across the continents. Why is there not the same urgency in the HSE's recruitment of people?

Deputy Tully, our committee's Vice Chair, and Deputy Carroll MacNeill, who has just left the Chamber, are used to listening to the information provided at our meetings – we regularly meet on Thursday mornings – about occupational therapists leaving, about services, including occupational therapy, not being available in the public sector, and about people having to go private, skipping mortgage and personal loan repayments in an attempt to provide the best for their kids. I applaud them for doing that, but it should not have to be the case.

We are debating this legislation to ensure a proper legal foundation for dealing with people with incapacity. When I was made Chairman of the Joint Committee on Disability Matters, I said that a future Taoiseach would apologise in this Chamber for the way that people with disabilities had been treated. That has already happened.

We must ensure that we are challenging the system at every level. I have great confidence in the Minister of State, Deputy Rabbitte, and the Minister, Deputy O'Gorman, doing that as a team, but we need to examine where the logjam is and make enough resources available to ensure that the maximum number of staff are kept on. These are people who have built up considerable expertise. We have seen families in crisis not getting the care they need. Some people who have been eight, ten, 12 or 15 years with an organisation cannot get full-time contracts. That is not acceptable.

I welcome the Bill, but I ask that we keep it under review. It follows on from legislation that is more than 200 years old and, while it needs to be enacted, we need to see where the challenges in its operation are. There will be challenges because this is complex legislation that deals with families going through complex periods involving incapacity. We must ensure that there is a constant review. Will the Minister of State and the Minister commit to reviewing it in 12 months' time to see whether amendments are needed to ensure it is working properly?

The minute the Bill is passed by the Houses, the State needs to ratify the optional protocol. Then, if people do not believe they are getting proper services, they could go to the UN, which would be able to put pressure on the State and Government to ensure that proper services are available. There should be no delay in ratifying the UNCRPD optional protocol. That would not be acceptable. We have been told that this Bill must be enacted first. Now that it will be, there should be no further delay. In this way, we as a society will give the most vulnerable people – those who do not have capacity – the best possible chance and the State will work in their best interests in the simplest legal way.

A point was made about free legal aid. I would like it clarified. I assume that free legal aid would be available under this legislation, but we should clarify the position.

I thank the Ceann Comhairle for the opportunity to contribute to the debate on this Bill. We need to underwrite the legislation in the best possible way for people with disabilities and incapacity by pushing the system and challenging the blockages therein. The Government and the HSE must challenge these blockages and ensure that we do not lose expertise. Brain drains were mentioned as regards other sectors. We are losing valuable people from the disability sector because the State has not ponied up, for want of a better term, and ensured that their contracts are renewed and there is pay parity between staff in section 38 and 39 organisations who are doing the exact same jobs. This disparity should not be countenanced any longer.

I look forward to the conclusion of this debate and the enactment of the UNCRPD optional protocol.

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