Denis O'Donovan (Fianna Fail) | Oireachtas source

I welcome the Minister of State to the House. This is large, significant and groundbreaking legislation. Fianna Fáil broadly welcomes the Bill as the present legislation governing mental capacity in Ireland dates back to 1871 and is regarded as outdated and unsuitable for dealing with people whose ability to make decisions is affected through illness, injury or any other cause. The Lunacy Act of 1871 has no place in modern Ireland. While the Bill is not perfect, it is nevertheless a milestone. The Bill, when enacted, will result in the end of the wards of court system and the discharge of people currently within the system. As a practising lawyer, I felt the system was well overdue a total overhaul and this will result in significant improvements in these people's lives.

Human rights and advocacy groups have long been calling for the legislation to be revised with a shift from substitute to supported decision making, so that individuals are enabled to make their own decisions wherever possible. This legislation is needed in order to enable Ireland ratify the UN Convention on the Rights of Persons with Disabilities. While the progress of this Bill has been slow and subject to many amendments, we believe that although it is not perfect, it is nevertheless essential legislation that replaces and updates 144 year old legislation. This Bill represents a move away from our past and our often inhumane treatment of people, so it is important that we progress with the legislation.

The Assisted Decision-making (Capacity) Bill 2013 as first published advocated the replacement of the wards of court system with a legal framework to support people in exercising their decision-making capacity, so they can better manage their personal welfare, property and financial affairs. I was dealing with a situation where a young man was made a ward of court as a result of an accident. He subsequently married. One had to apply to the High Court to buy him a suit. It was a most awkward and difficult situation which took a lot of time. On this occasion, it was for a family wedding. I think it was their second anniversary by the time we got the suit. That is the type of stuff that went on; that is the reality of it.

As first published, the Bill proposed to change the existing law on capacity from the current all-or-nothing status approach to a functional one, whereby decision-making capacity is assessed on an issue-specific and time-specific basis. It proposed to provide a range of supports on a continuum of intervention levels such as decision-making assistance, co-decision-making, decision-making representation and informal support to support people in maximising their decision-making capability.

As the time available to me is limited to eight minutes, rather than going over ground on which we all agree, I will bring to the attention of the Minister of State some issues we may raise by way of amendments. The thrust of the Bill is good but there are outstanding issues, in particular, issues raised by Eilionóir Flynn from the Centre for Disability Law and Policy at the National University of Ireland, Galway, and a coalition of groups representing old people, disability and mental health organisations. They have raised concerns in relation to a number of aspects of the Bill.

The first of those is the definition of "capacity" which defines mental capacity in a way that suggests that if a person is found to lack mental capacity it will result in the loss of his or her legal capacity to make decisions. We must remember that Article 12 of the UN convention makes plain that persons with disabilities must enjoy legal capacity on an equal basis with others in all aspects of life.

Another area of concern is advanced health care directives. An advanced care directive, sometimes known as a living will, is a statement about the type and extent of medical or surgical treatment a person wants in the future, on the assumption that he or she will not be able to make the decision at the relevant time. These will not be legally binding if a person has been detained under the Mental Health Act. It is argued that this can undermine people's rights and they will not be respected in the event of mental health crises that lead to involuntary treatment under mental health law.

Another issue of concern is that of chemical restraint. I have received correspondence on this matter from Mervyn Taylor, who was a former leading light and a progressive and forward-thinking Minister some three decades ago. He, among others, shares a concern about chemical restraint. The Bill recognises that medicating people is a form of restraint. It is argued that the Bill needs to be strengthened in this area and that intentionally using chemical restraint to control or modify a person's behaviour to ensure a person is compliant or not capable of resistance where no medically identified condition is being treated needs to be subject to greater scrutiny. Furthermore, the use of chemical intervention as a consequence of the collapse in supports and budgets in this area is something that is also a cause of great concern. On Saturday, 10 October the United Nations special rapporteur on the rights of persons with disabilities made a comprehensive statement specifically on this area and said:

The concept of "medical necessity" behind non-consensual placement and treatment falls short of scientific evidence and sound criteria. The legacy of the use of force in psychiatry is against the principle "primum non nocere" (first do no harm) and should no more be accepted [in modern society].

It is argued that the legal aid provisions of the Bill must be strengthened to ensure that there is an automatic right to legal representation, regardless of means, when an application is made to court for a declaration on an individual's mental capacity for a decision. This is essential to ensure effective access to justice for people affected by the Bill.

Fianna Fáil welcomes the legislation, in particular, the repealing of the Lunacy Act which has no place in 21st century society. More than 600,000 people in Ireland, which is not far off one in five of the population of the State, have some form of a disability. More than 57,000 people have an intellectual disability. This legislation, although not perfect, is an important step in improving the rights of people with disabilities. If needs be, let us learn from this law's application and how it blends in and let us consider what changes can be made. It touches on fundamental human rights including equality before the law, liberty of the individual as a default position protected by law and the autonomy of citizens in making decisions concerning their own lives.

It is long-awaited legislation and we welcome many of its provisions. However, significant cuts to services introduced by this Government have had very serious negative impacts on the lives of people with disabilities. Long waiting lists for essential services, reductions in social welfare payments and a completely overburdened and overwhelmed health care system have done untold damage. While the legislation is fundamentally important it will be undermined unless we address the issues in our health service. I say all this to be constructive. It is major reforming legislation. The Bill is probably one of the most important enactments since the likes of the Succession Act 1965. It is of huge importance and we will, by and large, support the Bill. However, it is important to realise at Cabinet level in this Government or the next that unless there is a financial underpinning of the proposals in this Bill, including sufficient monetary support for our health services, it will have huge problems in the future.I acknowledge that the Minister of State, Deputy Kathleen Lynch, has put much work into the Bill. No legislation, however, is perfect. I remember when I studied law how we dealt with the Companies Act 1963 which had been modelled on the 1948 English Companies Act. In five years it had started to evolve and change. Company law has changed significantly since. No doubt some future Minister will have to revisit this legislation and make changes after it has been implemented. I do not want to take from the importance of this legislation, but when the Minister of State’s political epitaph is being written, this will be a significant plus for her.