Thomas Pringle (Donegal, Independent) | Oireachtas source

I thank the Ceann Comhairle for the opportunity to contribute again on this. I wish to follow on from what I was saying yesterday just before the debate was adjourned. I was referring to why this Bill is now so urgently required and the necessity that has been put on to rush all Stages. This needs to be considered much more closely. In this House, we should not just bend over and bow down to this. Deputy Connolly, who spoke yesterday, outlined very well the current situation and the note we were given on the case at the briefing held by the Minister. The note is worrying. It shows how officialdom and the Department consider this matter. In red letters across the top, it states Deputies are reminded that the subject of legal cases is not suitable for discussion on the floor of the Houses. If so, we should not be legislating in a rush like this to meet needs associated with legal cases. There was a dispute at the briefing on whether this was the reason for rushing the Bill. Apparently, some of the civil society bodies were ready to deal with this, and that is the way it should be dealt with.

We certainly need to consider that. I was going to argue that what has happened will not happen again but I do not believe it because, in reality, we seem to respond at a very late stage to anything that needs to happen rather than being proactive. This legislation was around since 2013 and the need to address the relevant matter arose in 2015. Here we are in 2022 and it is being addressed only now. That is a problem.

I thank the organisations that have done trojan work over the past three days to ensure this legislation would be properly scrutinised and that Deputies speaking on it would be properly informed of its implications. In particular, I thank the NUIG Centre for Disability Law and Policy, Mental Health Reform, Disabled Women Ireland and Nem Kearns for engaging so helpfully with my office regarding this. Their insight is invaluable. It is such a shame that the Government has not properly engaged with such groups and individuals to gain this insight. I have been truly shocked by the Government's complete lack of engagement.

By not consulting with the disability community and disabled persons organisations, the Government has completely failed to meet obligations under the UN Convention on the Rights of Persons with Disabilities, UNCRPD. There was no public consultation on which amendments were required to the Assisted Decision-Making (Capacity) Act 2015 and the consultation on the heads of the Bill was rushed and inaccessible to many disabled people. I know the Department consulted disabled people on the original Bill in 2013 but this cannot be considered sufficient consultation for an amendment Bill nine years later. I believe this lack of a more recent consultation breaches the UNCRPD. I am also shocked at the lack of consultation with the Joint Committee on Disability Matters and the Sub-Committee on Mental Health, given neither committee was given the opportunity to scrutinise this Bill.

This is worrying for the Houses of the Oireachtas. People might find this strange but we are actually supposed to be separate from the Government, whereas, in practice, that is not what happens. The Houses of the Oireachtas have something to do here as well in light of how they are being treated by the Government in this situation. It happens regularly and I am not suggesting it is just on this particular legislation. There is an overall problem that the Government sees the Houses of the Oireachtas as a kind of vassal of the Government rather than as something independent of Government. That is something in the culture of Government that we have to address. I am not exactly sure how it will be done but it might be possible.

This legislation affects disabled people’s rights and the Joint Committee on Disability Matters should have had oversight of its interaction with the State’s obligations under the UNCRPD. The Joint Committee on Children, Equality, Disability, Integration and Youth, in its pre-legislative scrutiny of this Bill, first and foremost said that it was not given enough time to properly scrutinise it and then recommended that both of these committees should be consulted to see how best to ensure accessible and inclusive processes of consultation as per our obligations under Article 4.3 of the UNCRPD. I have no doubt that if these committees were given adequate time to scrutinise the Bill, the many issues we are now coming across would have been better addressed.

Where this Bill falls short is the fact that it does not address major flaws in the original Act, such as the failure to extend advance healthcare directives fully to those under the Mental Health Act. We need to ensure that legally binding advance healthcare directives for all will be provided and that no one will be treated differently because, otherwise, we are only serving to enshrine discrimination based on disability or perceived disability and we are not respecting the UNCRPD.

The amendment Bill has also 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. We also need to address the fees charged for searching the register of decision-making agreements. It seems there could potentially be an astronomical cost to the HSE to get access to decision-making agreements and the same would be true for advocacy organisations. This is another area that we need to look at and address. Sadly, the HSE would use the issue of costs as a barrier to actually providing service or looking to help people.

A huge area of concern for me is the fact this amendment Bill does not take the opportunity to remove section 85(6) from the original Bill, which would remove the phrase “deleterious effect on the unborn”. This language is vague and unhelpful and undermines all refusals of care and treatment based on consent. It ultimately allows for pregnant people’s wishes to be ignored. This section was included in the original Bill to ensure the Act would meet the constitutional obligation to protect the right to life of the unborn. However, following the repeal of the eighth amendment, this section should now be deleted in its entirety. I know the Minister said he is looking at tabling an amendment to address this but I do not believe that is good enough. One would have to think that in the preparation of this legislation, that would have been seen and addressed, given a constitutional referendum took place in the last couple of years. We should not have to ask for this as it should have been considered in the first place. Women are sick of constantly having to ask for their rights to be realised and respected. Pregnant people should have the same right to refuse care as every other person. We need to end the continuous undermining of pregnant people’s decision-making in our laws now.

I also have concerns regarding the delegation of powers to the decision support service, DSS. This Bill will allow for the transfer of further powers to the DSS but there is no obligation on it to meaningfully consult with disabled people, older people and people with experience of mental health services in exercising these powers. The Bill would also allow the DSS to share information with other bodies and allow investigators under the DSS to access private data, such as medical and financial records, without an individual’s consent and without court oversight, which completely infringes on a disabled person's right to privacy.

Another thing that this Bill allows is for cases to be heard in public without the consent of the person at the centre of the case, which again infringes on a disabled person’s right to privacy under Article 22 of the UNCRPD.

I welcome the end to wardship in Ireland. However, I would like to support the committee’s pre-legislative scrutiny recommendation to shorten the period provided for all wards to transition out of wardship. I would also like further clarification on exactly how this transition will happen.

I support the committee recommendation that provisions of the 2015 Act should be extended to 16 and 17-year-olds and that arrangements should be made for those in prison and other institutions to access the Bill’s provisions. As well as this, I believe the provision of legal aid should be extended to as many parts of the Act as possible.

An area of this Bill that needs serious reconsideration is the decision to continue excluding many disabled people from jury service. This is incredibly discriminatory and it is very disappointing that the opportunity to amend this was not taken up.

It is also disappointing that the Bill does not contain an explicit prohibition on all physical and chemical restraint. I know many disabled persons' organisations have been in contact with the Minister in this regard.

I would be very grateful if the Minister could answer the following two questions which I have on these issues. First, the language in section 82 of the Act contains a typographical error and continues to maintain a discriminatory approach with respect to people with intellectual disabilities in particular serving as members of juries. Will the Minister commit to bringing forward an amendment on Committee Stage to rectify this situation, thereby ensuring that no disabled person would be automatically ineligible for jury service on the basis of an assessment of their capacity without first ensuring that support and reasonable accommodation, which could enable the person to serve as a juror, has been offered? Second, section 35 of the Bill amends section 44 of the 2015 Act by removing all references to restraint, but it needs to go further to ensure that no one is unlawfully restrained under this Act. Will the Minister commit to introducing explicit prohibition on restraint, for example, by including the line: “Nothing in this Act authorises any intervenor to consent to the use of physical or chemical restraint on a relevant person”?

There is no doubt that further clarification is needed in many areas of this Bill. I hope the Minister will clarify this in his response and I also hope that he takes into consideration the points I and my colleagues have made. Above all else, I ask the Minister to engage fully and properly with disabled persons' organisations and other organisations on the ground and that he would prioritise this over the rushing through of legislation. We are all aware that this legislation is being rushed through due to a recent constitutional challenge. I strongly condemn the rushing through of such important legislation just to protect against a judgment that has not yet been decided and might not be decided for a number of months.

Some of the disability groups were watching the debate yesterday and they have some questions that the Minister might address in his summing up or at a later stage. They ask which stakeholder groups the Minister will meet in regard to the Bill. They are particularly interested in knowing which disabled persons' organisations and other representative groups with lived experience will be included in these conversations. It has also been suggested that this Bill is necessary for Ireland to ratify the optional protocol and the Minister might confirm whether that is definitely the case. Will the Government commit to adding specific reference to the UNCRPD to this Bill? We have been assured that people falling within the scope of the Mental Health Act will have parity of rights when it comes to advance healthcare directives. Can the Minister confirm what this parity will look like? Will an amendment to this Act be introduced to ensure people with mental health conditions can implement advance healthcare directives under this Act or will the Mental Health Act have to be amended to allow for the advance healthcare directives?

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