Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I thank all the Deputies, in particular those who made their significant contributions yesterday. I thank Minister of State, Deputy Rabbitte, for leading off on Second Stage. During our discussions yesterday Deputies spoke to the problems of wardship, the extremely outdated nature of the system, the fact that it has been with us for more than 100 years. It is a system dating from the 1800s. Deputies spoke to the very real difficulties their constituents have experienced when they have been confined by the situation on wardship. Deputies Boyd Barrett, Ó Cuív and Healy-Rae all spoke about individual circumstances. There is that recognition across the House that wardship is a draconian institution which entirely robs people who have been assigned to wardship of any recognition of their individual capacity. They are denied any sort of personal agency. We looked for the figures from the Courts Service. Just over 2,100 people are in wardship at the moment, according to Courts Service figures. Somewhere between 200 and 300 are added each year.

Many Deputies spoke to the frustration at the fact that the replacement of wardship should have happened already. There is an Act allowing for the ending of wardship. We passed the Assisted Decision-Making (Capacity) Act in 2015 but it has not been commenced. We have a decision support service, DSS, ready to provide the graduated levels of supports for persons who have some impairment to their capacity to enable them as much as possible to make their decisions.

A Deputy spoke to concerns about the DSS but it might be useful to recall the guiding principles of the existing 2015 Act and what they say about central issues on capacity. What I am about to read out is not in operation right now. It has not been commenced. Section 8 is the section on the guiding principles. Section 8(2) states, "It shall be presumed that a relevant person... has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Act." We are replacing wardship with a presumption of capacity if this is commenced. Section 8(3) states, "A relevant person who falls within paragraph (a)of the definition of “relevant person”... shall not be considered as unable to make a decision in respect of the matter concerned unless all practicable steps have been taken, without success, to help him or her to do so."

The 2015 Act, which we are seeking to commence by passing this amending legislation, represents that complete reversal of the wardship presumption and the complete abolition of the concept of wardship. That is something I think we all agree is positive.

I will not be able to address every issue but I will do my best to address some of the issues raised yesterday. Deputies Ward, Connolly and Pringle raised the issue of the functional capacity test and the argument that it is not UNCRPD compliant. The Government's position is that is not the case, that the functional capacity test is UNCRPD compliant. It requires a presumption of capacity and it replaces that system of wardship that is not, as we all recognise, compliant with article 12 of the UNCRPD. However, the functional capacity test replaces that with a rights-based approach that meets people as they are at a specific point in time. It privileges, protects and enforces a requirement to identify, respect and act in accordance with a person's will and preference. We have achieved that through the functional capacity test.

A number of comments were made about the draft codes that have been put forward by the DSS. It is important to emphasise they are just that, they are just draft codes at the moment. They are out for consultation. They will not become official codes until they are given approval by myself, as Minister. That process of deciding what does or does not go into them is not finished at this stage.

A number of points were made about the capacity assessment. A Deputy said that large numbers of unqualified persons could conduct a capacity assessment. That is not correct. This Bill does not permit that. Only registered medical professionals or other classes of professionals that will be prescribed by regulation from the legislation can conduct a capacity assessment and only the court or where it is set out in the Act, the director of the DSS, can give legal effect to a decision support arrangement. However, where guidance can emerge from the DSS is on how other sectors of society might respond to a person whose capacity in respect of a decision in question in a specific circumstance. This should not be confused or conflated with a formal capacity test. It is a different thing. It is not a formal capacity test. It is important the DSS gives guidance on how other broader sectors of society should give meaningful effect to that principle of capacity. The guidelines are there to empower this principle of capacity, not to look to restrict this in any way.

Deputy Pringle raised the point of the implications of the referendum on the repeal of the eighth amendment. Deputies Connolly and Cairns raised that as well. To be clear, the issue in terms of advanced healthcare directives in pregnancy will be addressed on Committee Stage. I want to make it clear that is going to be done.

The issue of legal aid will be addressed on Committee Stage. The Minister, Deputy McEntee, has brought forward a review of legal aid and the issue of including the provisions of this Act within that is specifically listed in that review. However, we will be putting that in place by way of a Committee Stage amendment. Hopefully, this will give clarity on that particular point.

A number of Deputies said this is being rushed. I accept that we have set a tight timeline for passing this legislation. However, we are not rushing it. We have not combined the taking of Stages. There will be a full Second, Committee, Report and Final Stages in each House. It will be done on the basis where meaningful amendments can be tabled during that period of time. There is a recess next week which gives significant time for amendments to be tabled on Committee Stage. I do not accept it is being rushed. I recognise it is a tight timeframe but I do not agree that it is being rushed. I have indicated that I will be using Committee Stage and I will be happy to engage with Deputies in terms of seeking to address some of the issues they have raised.

Whenever I have addressed a parliamentary question on bringing in this legislation to allow for the abolition of wardship, and I have answered a significant number of them, I have always indicated that we were looking to bring in this in June. I do not think it should be a shock to the system that this is coming at this point. I accept the point in terms of the publication of the Bill. I accept it was too tight. However, there was a detailed pre-legislative scrutiny process and we have a recommendation. I recognise the committee worked to a swift timeframe on that also and I am grateful to it for doing that.

It is not incompatible that there are a number of reasons that we need to move swiftly. I made the point yesterday about State organisations, such as the HSE and the courts - I will come back to the courts in terms of the transition - and private organisations such as banks. Yesterday some Deputies asked why we were working to convenience the banks. Much of this is about the management of the ward's money or the money of people who, if we do not get this legislation passed, will become wards in the future. That is why it is important financial institutions are aware of, and are training their staff to be ready for, this change. That is an important thing and it will be one of the benefits of this. Rather than a ward's money being tucked away in an account in the High Court - we know there have been many problems with that in the past - people will have access to their bank accounts, using that graduated system of support that is provided for in this legislation.

In terms of the transition, my understanding is that there will be a judicial panel established by the High Court to go through each of those 2,100 or so wardships to determine where they sit within the new system. That is being put in place by the court currently.

The Deputy made the point about looking at how the DSS will exercise its powers and consultations. I am happy to look at that on Committee Stage as well.

One of the most significant discussions that we had yesterday - I am sorry Deputy Ward is not here but he was here for almost the entire debate yesterday - was on the issue of the interaction of advanced healthcare directives and mental health and whether we address it in this legislation or in the significant and necessary reform of the Mental Health Act 2001 that is being worked on by the Department of Health. It is important to say that anybody who is receiving voluntary mental health treatment will be able to avail of advanced healthcare directives. Their ability to use an advanced healthcare directive in terms of the treatment they receive is provided for under this legislation.

The issue is involuntary treatment under Part 4 of the 2001 Act. The position, in terms of my Department's engagement with the Department of Health, is that the latter is looking to revise entirely the 2001 Act. There was a general scheme published in July 2021 and that is undergoing a pre-legislative scrutiny, PLS, process. There is also work continuing within the Department of Health to draft the legislation. That will entirely change the laws for the better in terms of mental health. The question is, how does what we are doing here plug into that. Deputy Ward suggests we put something into this Bill that covers this discrete area of mental health by amending the 2001 Act, but the 2001 Act is about to be entirely amended by what the Department of Health is doing. We will have to come back and retrospectively amend this Act anyway. There is also a question in terms of the expertise on this, particularly in terms of involuntary detention, and that the expertise lies with the Department of Health as the officials who look at the issue of mental health are in that Department. Deputy Ward has said he will bring forward amendments. I will look at those amendments. I will also continue to engage with the Department of Health to see how we address this. I cannot make any absolute commitments on this but we all share the view that the position of people who are in involuntary detention and their ability to use advanced healthcare directives needs to be addressed. There is agreement on that. There is only a question of whether that is best done in this legislation or in the reform of the Mental Health Act 2001, which is a priority for the Government. I will look at that on Committee Stage. I cannot make an absolute commitment as to what the outcome will be but I will look at that. I recognise it is an issue of concern to many.

There is strong agreement in this House about the need to end the outdated system of wardship. I do not fully understand still, I will be honest, how the 2015 Act was never fully initiated and why it has taken this long but I do not want the next Oireachtas scratching their heads and asking why has wardship still not been abolished. We have the Decision Support Service, DSS. It is ready to undertake this important role. It is ready to support people's capacity. It is ready to support those who need the benefit of this legislation.

I look forward to engaging with Deputies and Senators at subsequent Stages. I believe that we can get a system that finally ends wardship and that creates a real structure for support for those who have some impairment to their capacity. That is something that we are all agreed on.

See this speech in context