Fidelma Healy Eames (Fine Gael) | Oireachtas source

Cuirim fáilte roimh an Aire Stáit and I am delighted to speak on this Bill. On 1 December 2010, I brought this issue to John Moloney, the Minister of State in the previous Government, and asked him why Ireland was not ratifying the Convention on the Rights of Persons with Disabilities. The reason was, for example, because this Bill was not in place. At the time, he assured me the Bill would be ratified during the term of that Government. Others have made this point to the Minister of State but the big challenge for her is to complete this Bill during the Government's term of office. I have every confidence she will because I can see the amount of work she has done on it. This is critical.

If one considers the Bill from an overarching perspective and moving on to the aforementioned convention, what will its ratification mean, for example, for the Education for Persons with Special Educational Needs, EPSEN, Act? Once ratified, will such people be able to have their needs enforced by statute? I understood this would be the benefit of first putting in place this Bill and then ratifying the convention. Will personal budgets follow because that is a model of good practice in other jurisdictions for people with disabilities broadly, not just intellectual disabilities? This also is a critical measure in this regard and I ask the Minister of State to address this point in her response to this debate. After the Bill has been enacted, how soon does the Minister of State envisage Ireland ratifying the Convention on the Rights of Persons with Disabilities? I have spoken to Professor Gerard Quinn of NUI Galway about this and he told me it is almost ready to be ratified but I seek the Minister of State's answer in this regard.

This is a reforming Bill on which I congratulate the Minister of State. It is based on sound human rights principles but is still a work in progress. I intend to table amendments on Committee Stage. Nevertheless, the Minister of State and Members should work together to make it the benchmark legislation on mental capacity and assisted decision-making.

I wish to touch first on the issue of chemical restraint, which has been raised by many other Members. This is where medication is used to control behaviour instead of assessing clinically the underlying causes. I have spoken to a number of people in this area today, including Mervyn Taylor, who is not, as some people thought, the former politician. One example he gave me was of people with dementia who might perhaps be extremely agitated. It is very easy to throw medication at them instead of assessing the underlying causes for that agitation. Another was of somebody with a mild stroke being admitted to a hospital or nursing care facility that was short of staff and which put that person on medication and gave the person pads instead of helping the patient to use the toilet. What greater loss of dignity can one have than when one loses control over one's bowel function? Consequently, one must be careful in this regard and my request to the Minister of State is for a general legislative provision to address the issue of chemical restraint, which is used too frequently as a first, rather than a last resort. I ask the Minister of State to address this point in response. Does she plan to bring forward such a general legislative provision in the course of or at the end of the passage of this Bill?

In some other points, it is to be welcomed that section 4 specifically rules out authorising any person to give consent for a non-therapeutic sterilisation procedure to be carried out on a person who lacks capacity. Originally, such an authorisation was included in this Bill but unfortunately, section 4(3)(a) would allow the High Court to promote the donation of organs by a person lacking capacity. One does not need to be a genius to realise that even if the person agrees to this before he or she loses capacity, there is likely to be a lot of psychological pressure on him or her to do so afterwards. This is a real bone of contention. Another application to be adjudicated on by the High Court is one provided for in section 4(3)(b) to withdraw life-sustaining treatment from a person lacking capacity. This must be read in conjunction with section 68(4)(b), in which basic care is defined as not including artificial nutrition or artificial hydration. This is an out-of-date distinction in that as the Minister of State is aware, what was artificial a few years ago now is basic care. Moreover, it is only in exceptional cases that treatment, which ordinarily is life-sustaining, does not in specific cases sustain life and I understand this happens in particular with certain types of cancer. There is a real danger that carelessness in the definition in this case could facilitate assisted suicide or euthanasia by the back door. Moreover, there is no basis for holding that a majority of the public seek this.This is a cause of real ethical concern. As Members will know, the House of Commons ruled it out and recently decided heavily against assisted euthanasia and assisted suicide.

There are many other points I wish to flag, with the Cathaoirleach's indulgence. The issue members of the legal capacity coalition group have brought to my attention - I acknowledge the members who are in the Chamber - is the retention of mental capacity assessments for all categories in providing support. As the mental capacity approach has not been replaced, it is important that we consider it on Committee Stage.

Many of my colleagues have mentioned that advance health care directives are not applied on an equal basis to those in a mental health context, when the evidence is that people actually recover better and feel better if they have an input into assisted health directives and they are applied. Although there is a lot of room for improvement, this is a great Bill and I compliment the Minister of State on having the courage to stand over it. It is 144 years since the last Bill was introduced in this area; she is, therefore, certainly making history. I have waited on this legislation for quite a long time.