Niall Ó Donnghaile (Sinn Fein) | Oireachtas source

Tá mé ag iarraidh cúpla focal a rá maidir le cúpla de na rudaí a phlé muid cheanna. In respect of some of the things that have been discussed or touched upon, the 1983 Act has long been recognised as inadequate when it comes to persons with disabilities. We particularly note the broad welcome from organisations who work with people with disabilities for the repeal of section 5 and 6(2) of the 1983 Act. Their view has always been that the legislation needed to be changed as it was inadequate from a protective perspective.

The broad and vague nature of the 1983 Act has led to reports of people with intellectual disabilities having their rights restricted as adults as they were unable to have intimate relationships. Supporters and advocates felt that the effects too often left people feeling compelled to prevent relationships developing between persons who had intellectual disabilities. Clearly the State must have a more modern and rights-affirming approach to individuals' capacity to consent and must recognise that an intellectual disability does not automatically mean that an individual cannot participate in an adult relationship. We have in the past pointed to the UN Convention on the Rights of Persons with Disabilities, UNCRPD, and the need to eliminate discrimination when it comes to relationships, marriage and parenthood. The 1983 Act was deficient in not including or adhering to the UNCRPD requirement. While there must be protection for vulnerable persons against exploitation, there must not be undue influence on the right to have a relationship. Unfortunately, the proposed Bill still presents people with disabilities as having a questionable capacity to consent, unlike the general presumption of capacity afforded to those without intellectual disabilities.For there to be no discrimination, we must have a rebuttal presumption of capacity to consent for all persons. Otherwise, the new law will continue to discriminate. It would have been appropriate to insert a new section to provide for presumed consent.

I also object to some of the terminology used in the Bill such as "protected person". Will the Minister refer to the recommendations made by the Law Reform Commission in its report on sexual offences and the capacity to consent? Will he instead use the term "relevant person"? In the Assisted Decision-Making (Capacity) Act 2015 "relevant person" is the terminology used. I hope the Minister agrees on the merit of being consistent in the approach taken.

While I began by welcoming the nature of the Bill, no Bill is without its flaws in some regards. The ones to which I have referred should be considered.