Marie Louise O'Donnell (Independent)

I am very pleased to second the motion proposed by my colleague, Senator O'Brien. The motion recognises the need to protect and maintain disability services. We need to do this in order to enhance the participation and inclusion of people with disabilities in Ireland. I will speak in particular on two elements of the motion, the first being the Lunacy Regulation Act 1871. It is astounding that this Act remains the governing legislation in this area. The second element is the standard for residential services for people with disabilities.

The motion calls on the Government to commit to speedily and immediately bringing a Bill before the Oireachtas to repeal and replace the Lunacy Regulation Act. Many people may not be aware that this Act, long since outdated, still governs the adult wardship jurisdiction of the courts. The need for appropriate and modern legislation on mental capacity applies, not only to persons with intellectual disabilities but potentially also to other categories of people, including those with acquired brain injury, dementia, and so on. I am sorry to state that the approach of this Act to questions of capacity and disability is just as outdated as is its language.

International best practice is to access capacity on a case by case basis. This entails focusing on what is known as functional capacity, and assessing the person's capacity to understand the nature and consequences of a decision in the context of the choices available to him or her at a particular time. Supported and assisted decision making is now best practice internationally, where necessary and where appropriate. This is not the case in Ireland and we continue to operate primarily under the 1871 Act which provides only for general finding of incapacity, which then applies to every decision for the person in question and covers everything from decisions on living arrangements and property, capacity to enter into legal contracts and consent to medical treatment, etc. This approach is not appropriate in a modern setting. Our understanding of intellectual disability is no longer what it was in 1871 and it is time our legal framework caught up.

I am very pleased to see a reference in the programme for Government to reforming the law on mental capacity. However, as we approach the first anniversary of this Government's term of office, it is time to convert that commitment into immediate action. This is a very complex area but already there is considerable expertise available which could allow for speedy introduction of appropriate legislation. The 2006 report of the Law Reform Commission on vulnerable people and the law contains many valuable recommendations which centre on the need for a modern system for guardianship or wardship of adults. As a recently appointed Senator, I am conscious of the efforts made by Members in previous Seanads who twice sponsored Private Members' Bills on this topic. These should be drawn on to finally repeal and replace a 140-year old law which is outmoded and outdated in its language and content.

We have information that a large number of people, some of whom may be particularly vulnerable, are in full-time residential care paid for by the State but without any adequate or official inspection regime. This is not acceptable. We have been shocked at the abuses uncovered in the past in certain nursing homes, industrial schools and other residential settings. Residential care homes cater for 8,000 adults and over 400 children with intellectual disabilities. All these are well-run institutions, staffed by hard-working, committed and caring professionals. The crucial point, however, is the only way to ensure this is to have clear and appropriate standards for such residential services with an inspection framework to ensure they are upheld. Outrage is useless after a difficulty or abuse is uncovered. The only mature approach is to put an appropriate legal framework and inspection in place before the problem develops.

The programme for Government, to be fair, states standards for residential services for people with disabilities will be put on a statutory footing and be inspected by HIQA, the Health Information and Quality Authority. It is time now to move on this. I would, however, have expected concrete information on the fulfilment of this commitment at this stage. What is the timeframe envisaged for the enactment of any legislation? When can we hope inspections will begin?

These are fundamental and profound human issues. As an aunt of a disabled young man, I know this points to the very heart of who we are, as well as who we think we are, as they affect the vulnerable and persons with disabilities. The issues raised in this motion are not affected by budgetary concerns or the ever present term "the current economic climate". The need for repeal and replacement of the Lunacy (Regulation) (Ireland) Act 1871, of which I have spoken, is a perfect example of a practical measure which could do much to enhance the inclusion and participation in society for people with disabilities without any budgetary implications. It is a simple question of demonstrating that we, as Senators and legislators, believe in the inherent value and dignity of all people, whether they have a disability or not. I urge all Members to support this motion.