Trevor Ó Clochartaigh (Sinn Fein) | Oireachtas source

Cuirim fáilte roimh an Aire Stáit. Mar a dúradh romham, is píosa an-tábhachtach reachtaíochta atá anseo. Tugann sé cearta cothroma do chuile shaoránach. Sinn Féin welcomes this Bill. As republicans we believe all citizens are equal and should be accorded the rights they deserve. The United Nations Convention on the Rights of Persons with Disabilities states that people with disabilities must have equal recognition before the law. This means that those with diminished capacity must be given the same legal rights as everybody else. As we know Ireland has signed this convention but cannot ratify it until this new capacity legislation is in place. Without legal capacity, other rights guaranteed by the convention cannot be achieved. The existing legislation is old and archaic, dating back to 1871 and is in urgent need of reform.

I welcome the fact that at its core, the Bill affords the opportunity for an individual to make legally binding agreements with others to assist and support them in making their own decisions. However, there remains at least two further problems as we see it. Section 68 (7) (a) provides that an advance health care directive shall be complied with unless at the time when it is proposed to treat the directive maker, his or her treatment is regulated by Part 4 of the Mental Health Act 2001. We believe this is unacceptable and discriminates against people with mental health problems. It is precisely at a time of involuntary detention when a person is in a particularly vulnerable situation that he or she may want his or her advance directive to take effect. International research shows that people with experience of involuntary treatment do not refuse all medical intervention in advance directives, rather they make informed decisions about the treatments that work best for them in times of crisis. We accept that it will not always be possible to respect advance directives, particularly where the person's life is in danger, however, it is imperative that advance health care directives are recognised as legally binding.

The definition of capacity in section 3 sets out a functional assessment of mental capacity. The result is that if a person is found to lack the mental capacity for a certain decision, his or her legal right to make that decision is removed. This is not in keeping with international human rights norms. The UN committee on the rights of persons with disabilities has stated in general comment 1 that under Article 12 of the convention, perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity. Since this Bill is being developed as part of Ireland's preparation to ratify the UN convention, the functional assessment of mental capacity must be replaced with the process of interpreting the will and preferences of the individual. This would ensure that when people need help to make decisions they are supported to do so.

In terms of wards of court, the Government has had adequate warnings that all is not well in the system for many years. In almost every respect, wards are second class citizens. They do not have the right to marry or to travel outside the country without the court's permission, to hold a bank account or to make decisions about their medical treatment. This we believe is a violation of their human and constitution rights.

The Government is of the view that the proposed legislation will enable it to ratify the UN convention on the rights of persons with disabilities. Currently the wards of court system does not conform to the convention and if the issues around fairness and equality for wards are not addressed, then the new system will not be fit for purpose either. I urge the Government to give serious consideration to the recommendations in the report by the Committee of Public Accounts and to look at how these can be accommodated by way of amendments to this Bill. It is imperative that these recommendations are anchored in legislation. The Government has a duty of care for the wards of court over and above the norm. These are very vulnerable people whose only income is from funds which are to provide for their future care and services. We are asking that legislation governing the Office of the Comptroller and Auditor General be amended to allow that office to audit the wards of court funds. It is essential this is done prior to commencement of discharge of wards of court into alternative decision-making arrangements under the new Bill.

I wish to raise concerns about the proposed legislation which have implications for older people and vulnerable men and women, especially those residents in institutional settings. The Support and Advocacy Service for Older People, SAGE, has raised the issue of chemical restraint - as have other Senators - and the need to ensure that measures to address this practice come into force immediately on the passing of the legislation. SAGE is of the view that what is required is a general provision in the assisted decision making capacity legislation to deal with chemical restraint and in particular to ensure that we do not simply limit the application of this restriction to decision making representatives and attorneys. Sinn Féin will be submitting amendments to deal with these and other issues that I raised earlier. Go ginearálta, cuireann muid fáilte roimh an reachtaíocht agus tá súil againn go dtiocfaidh sé chun cinn chomh tapaidh agus is féidir.