Seanad debates

Thursday, 15 September 2022

Assisted Decision-Making (Capacity) (Amendment) Bill 2022: Second Stage


10:30 am

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael) | Oireachtas source

I welcome the fact that the Bill is finally before this House and we, in Fine Gael, support the Bill. We need to get movement on the areas of the original Act that have not been commenced. Significant hardship has been caused to individuals, and families, in the time that we have waited for this legislation and the statutory framework that it facilitates. I am delighted that the Bill is here and we are on the road to putting all of it in place. It is shocking that it has taken until 2022 to repeal Acts that date from the 1800s. The language used in them, and the manner in which they classify people, is truly appalling and, therefore, I am glad that we will close that phase of our history.

There should always be a presumption of capacity. The burden should lie on others, and not on the individual, to demonstrate that he or she has capacity. The cultural shift in this legislation and the previous Act is very much welcome. It is a fact and it is a human right, which should be welcomed but this legislation is seriously overdue. The framework it puts in place and consolidates is modern and respectful and, in that respect, it is very important that we urge the acceptance of this legislation and see it fully functioning as quickly as possible.

I am very grateful for the clarifications by the Minister regarding Committee and Report Stages in the Dáil where many concerns arose from the pre-legislative scrutiny report. The Minister's response rested with me in terms of the many issues that arose and remain.

He spoke about mental health reform and the need to engage with the Mental Health Act in his contribution. Part of what I want to do is reiterate the concerns expressed by the Independent Living Movement Ireland on mental health reform with regard to the implications for persons with mental health issues. The interaction of this Bill with the Mental Health Act causes concerns among people such as Damien Walshe who advocated wonderfully that this legislation is likely to deny people their rights, and will be in breach of equality legislation as well as our obligations under the UNCRPD. I acknowledge that the Minister has stated that he will bring forward amendments and I look forward to them.

It is important that we highlight what was said by Damien Walshe. He said:

Central to the aim of the Assisted Decision-Making (Capacity) legislation is to safeguard disabled people’s right to make decisions and ensure that disabled people in Ireland are recognised equally before the law .. At present, the legislation allows for people involuntarily detained under the Mental Health Act to be denied the right to legally binding advance healthcare directives. The legislation also proposes a functional test of mental capacity, which is contrary to the assumption of capacity of people to make their own decisions, with appropriate supports. We feel that if the legislation is passed in its current form, it would be in violation of the Equal Status Acts.

I look forward to reading the Minister's amendments on that. It is important that we ensure that we do not further marginalise any group within our disability community. It is concerning that anything we bring into play would further deny rights or leave any group out. The Mental Health Reform organisation has expressed similar concerns.

Other concerns arose from pre-legislative scrutiny. One is to ensure at all times that the Decision Support Service engages with disabled people representative organisations. We must ensure that we continue to evolve and do not just hear from the National Disability Authority but widely. I say that because one the things to arise from pre-legislative scrutiny is there is a feeling that public consultation happened at inopportune times such as Christmas. Communication was not in a format that was readily accessible so we just need to ensure that we have that continued sensitivity in that area.

I welcome the ability to register an enduring power of attorney, EPA. However, there is misinformation among families and the community at large regarding the next of kin in terms of who makes decisions, how decisions can be made and who should be consulted in general. It must be ensured, therefore, that a document can be put in place when a person has capacity when he or she anticipates a time when perhaps he or she will not, and that it is honoured. We need a public information campaign to promote this provision and the need for same.

Regarding wards of court, another issue arose during pre-legislative scrutiny, which been mentioned by other groups that I have met. Even possibly today people are being made wards of court. The process continues and, therefore, we must ensure that we include anyone who is in the wards of court system, and process, under the remit of this legislation as quickly as possible. I have heard what has been said about ensuring additional resources and bringing people in as public servants.We need to do that to ensure everyone is under the same system as quickly as possible, while appreciating there will be a period of transition.

I have spent quite a bit of time with a group named Justice for Wards which comprises parents, some of whom were interviewed for a "Prime Time" documentary aired on 9 November 2021. That programme showed us a glimpse of families that include a person who was awarded a large sum by the courts as a result of an accident that occurred, a matter which arose or an action relating to negligence at birth. Those families had money on deposit. The public view is that the family concerned gets that money to provide lifelong support for an individual. It was only through that programme that some people realised that the State controls those funds. At the time and over the years, the State has been responsible for the investment of those moneys. In a small and discrete set of cases, all of the money has been lost. A number of families have been left without those funds. Some of those family members are getting older. Some of the persons concerned are well into adulthood. They needed those funds for their care but do not have them any more. The money has been lost. If the money had been put into a deposit account, it would still be there and accessible. That would be the case if the money had been put into Government bonds. However, that was not the case. Investment decisions were made to which those families were not a party. They had no say in that but are left to pick up the pieces where that money has been lost.

Justice for Wards is seeking meetings with the Ministers for Health and Justice, and with the Minister for Children, Equality, Disability, Integration and Youth, Deputy O'Gorman. Representatives of the organisation have submitted documents. Each time they have been referred to the Decision Support Service. The DSS has nothing to do with this matter. Somewhere within our system of government we need to make a decision to provide support and facilitate a redress mechanism. A court made awards and the State, or an agency on behalf of the State, made imprudent investments that lost the money. Those families need to be supported. A system needs to be put in place to support them. We owe them that duty. They should not have to beg for that redress. In parallel to this discussion, I urge the Minister to consider that point and raise it with the appropriate Cabinet colleagues.


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