Fintan Warfield (Sinn Fein) | Oireachtas source

I welcome the Minister to the House and I hope he had a nice summer. I too welcome the commitments he has made to possibly amend the Bill. That is welcome and we wait to see those amendments. We will bring forward our own amendments, as I know other Senators will during the other Stages. Sinn Féin supports the Bill and the need to reform how wardships of court are legislated for in the State. As Senator O'Reilly alluded to, not fulfilling our obligations under the UNCRPD is a missed opportunity to make Ireland a leader in capacity legislation. We tabled a number of amendments in the Dáil to make the legislation inclusive and more human rights-compliant. As has been mentioned, that the Bill repeals the Marriage of Lunatics Bill 1811 and the Lunacy Regulation (Ireland) Bill 1871 says enough about how important it was that we update this legislation and how that is so long overdue.

The Bill the Government proposes is not compliant with Article 12 of the UNCRPD because it allows for an individual's legal capacity to be denied based on an assessment of his or her mental capacity. The exclusion is discriminatory towards people with severe and enduring mental health difficulties or psychosocial disabilities. That the Government expects that the reform of the Mental Health Act 2001 will deal with this simply does not wash. The Act has not been reformed since 2001 and the principal Act we are dealing with is from 2015, seven years ago. In the meantime, people who have come under the Mental Health Act 2001 do not have the same rights as other people with disabilities when it comes to advanced healthcare directives.

The use of advance healthcare directives must be awarded to those who come under the Act. If that does not happen it could mean, in layman's terms, that if a person who comes under the Act goes to the trouble of doing an advanced healthcare directive, it will not be worth the paper it is written on. For example, if a person states in his or her advance healthcare directive that he or she does not consent to electroconvulsive therapy, ECT, also known as electric shock treatment, and they are subsequently detained under the Mental Health Act, his or her wishes may not be followed. That could easily happen, and it is already happening. In 2020, 20% of all ECTs administered in this State were done without consent, with 442 patients subjected to this treatment without their consent. As the legislation stands, people who are involuntarily detained do not have a right to have their advance wishes about treatment respected, even though they had the capacity to make decisions about their mental healthcare and treatment at the time of making the directive. No other group of individuals was specifically excluded from this legal right. The Government's refusal to include people detained under the Mental Health Act 2001 is discriminatory and Sinn Féin will table amendments to resolve that issue.

Another issue we have, which was mentioned during pre-legislative scrutiny, is the rush to process this legislation. No one wanted to delay the Bill but we must get it right.We must also ensure that everyone, particularly those affected with a disability, have a right to fully understand the legislation. The Minister's rationale for the rushed process was that a constitutional challenge was ongoing. A response to a parliamentary question tabled by my colleague, Deputy Mark Ward, states: "The constitutional challenge was adjourned on the basis that wardship would be abolished in orderly fashion by an Act of the Oireachtas, and this remains the case presently". Can the Minister clarify if this was the case and that the constitutional challenge was not the reason for rushing the legislation through the Dáil?

The Bill does not remove a section of the Assisted Decision-Making (Capacity) Act 2015 that reflects the situation prior to the repeal of the eighth amendment. An advance healthcare directive is a statement that people can make on the types of medical or surgical treatments they want, or do not want, to receive if they are unable to make such decisions in the future. However, under section 85(6) of the Act, an advance healthcare directive is not valid or applicable if it includes a refusal of treatment where such refusal "would have a deleterious effect on the unborn". Parts of an individual's advance healthcare directive may be disregarded if refusal of a treatment would have such an effect. This means a person's will to receive, or refuse, a required treatment is restricted if she is pregnant. This section reflects the language of the eighth amendment and it has no place in post-repeal Ireland.

Professor Eilionóir Flynn of the National University of Ireland Galway stated at the Oireachtas committee: "These sections are simply unnecessary and can be deleted from the legislation." It is welcome that there appears to be a willingness on the part of the Minister to do that. However, the question remains as to why this provision has not been amended. It is evidence of how rushed this legislation has been.

The Bill requires amendments and the Minister has committed to bringing forward some of them. A test for all of us here in the Seanad will be to address some of the main issues from a human rights perspective. The Bill continues to deny legal and binding advance healthcare directives to people detained under the Mental Health Act. The Bill fails to abolish the functional test of mental capacity, which has been confirmed to be a violation of human rights by the UNCRPD. The Bill does not guarantee access to justice for people whose decision supporters may be removed from them; maintains discrimination, especially against people with intellectual disabilities, in its determination of eligibility for jury service; enshrines a medical model of disability in determining the eligibility of members of the Irish Human Rights and Equality Commission, IHREC's, disability advisory committee, thus hampering the work of the committee; prolongs the archaic and unconstitutional ward of court system; and codifies the inherent jurisdiction of the High Court, which grants wide-ranging powers to judges to impose treatment without consent, authorise restraint and place people in institutional settings. This is without any specific legal basis or mandatory review and will imbed a dangerous parallel system alongside the new assisted decision-making regime.

These are the issues that we must deal with on Committee Stage and I welcome the fact the Minister will bring forward some amendments.