Thomas Pringle (Donegal, Independent) | Oireachtas source

It is a good job I was in a wee bit early.

It is more than a year since the rushed, two-day pre-legislative scrutiny process relating to the general scheme of what became the Assisted Decision-Making (Capacity) (Amendment) Act 2022 took place. On 15 and 16 February 2022, the Joint Committee on Children, Disability, Equality, Integration and Youth heard from key stakeholders, including disabled people, on the provisions in the proposed Bill. At the time, there was significant concern from disabled people about the inaccessible and rushed nature of the pre-legislative scrutiny process; about the lack of easy-to-read documentation detailing the changes to the Assisted Decision-Making (Capacity) Act 2015; and about the lack of consultation with disabled people themselves. At the time, we were told that there was a deadline for commencement in June 2022 and that there was a court case on hold, pending the commencement of capacity legislation. That deadline was extended, which was welcome, as the Seanad and the officials at the Department of Children, Equality, Disability, Integration and Youth considered amendments.

The Assisted Decision-Making (Capacity) (Amendment) Act 2022 was finally signed into law by President Michael D. Higgins on the 17 December. One would think that by now, almost in March 2023, people would be realising their rights to have presumed capacity and decision-supports rather than decisions being made for them or being made wards of court. One would think that but, unfortunately, it would not be true because we are still waiting for the full commencement of the 2022 Act and the 2015 Act. That is utterly unacceptable.

If we take a step back, eight years ago to be precise, the Assisted Decision-Making (Capacity) Act 2015 was signed into law. It was seen to be progressive, person-centred and a move away from the paternalistic control exerted over some people's decisions. The 2015 Act was to make Ireland compliant with human rights obligations - in Bunreacht na hÉireann as well as in international conventions. Wardship was to be abolished. The Decision Support Service, DSS, was to be set up. People were to be presumed to have capacity in decision-making. Health and social care workers were going to be expected to take all practical steps to assist a person in making a decision for themselves. Capacity assessments were to be used as a last resort. A person's will and preferences was to be respected. Advance healthcare directives were to have legal standing.

Older people, disabled people and all people with decision-making support needs waited patiently for full commencement and they are still waiting. Since the 2015 Act was signed into law, Ireland has ratified the UN Convention on the Rights of Persons with Disabilities, UNCRPD. On 7 March 2018, the Dáil passed the motion for the ratification of the UNCRPD. We are approaching the fifth anniversary of ratification.

The original Act was passed eight years ago, but people are still being taken into wardship, still not having their will and preferences respected and still left in limbo about when this legislation will come into effect. How is that fair?

That is not to say the legislation is perfect, fully United Nations Convention on the Rights of Persons with Disabilities, UNCRPD, and human rights compliant. It certainly is not. The Opposition tabled many amendments last year to try to improve the legislation. One example is the amendment to extend provision to people with mental health difficulties. A small compromise was reached on that matter, but 16 and 17 year olds are still excluded from the provisions which is completely contrary to the State's obligations and commitments under the UN Convention on the Rights of the Child. When will the Act be fully commenced? Will the Minister give a date at some point in the near future that will allow everyone to prepare for the coming changes? Why is it taking so long especially as the Government had self-imposed tight timeframes which distressed some people and excluded some people from taking part in the process? The timeframes were given as a reason for not accepting Opposition amendments? Now everyone is still sitting around unsure as to when their will and preferences will be legally upheld. It needs to make sense.

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