Frances Black (Independent) | Oireachtas source

I warmly welcome the Minister to the House and thank him for the work he has been doing in this area. I also welcome two campaigners who are in the Public Gallery, Ms Ber Grogan, policy and advocacy co-ordinator for Mental Health Reform, and Ms Fiona Walsh, co-director of Recovery Experts by Experience. There is no doubt that both women have been doing a lot of work around this legislation. Our debates are always enriched by the presence of the people campaigning on the issues we talk about.

Legislation is necessary and long overdue. In the programme for Government, Our Shared Future, there is a commitment to commence the Assisted Decision-Making (Capacity) Act 2015 to abolish wardships.It is vital that we meet our obligations under the UNCRPD. The system of wardship, as the Minister will probably agree, is outdated, oppressive and not fit for purpose. It is a massive failure that was recognised in 2015 when the Assisted Decision-Making (Capacity) Act was passed. It has taken all this time to add additional legislation to make it possible to commence it.

People have been waiting for so long for assisted decision-making support. Today, I want to apologise to all those who have been failed by this delay. It is important to say that. The Assisted Decision-Making (Capacity) (Amendment) Bill 2022 will operationalise the DSS. As Cathaoirleach of the Sub-Committee on Mental Health, I chaired months of pre-legislative scrutiny on the heads of the Bill to reform the Mental Health Act in 2021. There is no doubt that the two pieces of legislation are linked and are hugely important in progressing and realising the rights of people with psychosocial disabilities. These are rights which they have under the UNCRPD.

Since Ireland ratified the UNCRPD in 2018, we have had nearly complete political consensus that mental health and disability are issues that require a move away from old paternalistic models. A human rights-based framework is essential for the delivery of adequate support and care and for the empowerment of people with disabilities or mental health issues. The HSE's mental health policy document, Sharing the Vision, reflects this. It is a wonderful document. We all agree that this is the way to move forward. There is a major gap between the rhetoric and the reality of vindicating the rights of people with psychosocial disabilities.

However, the Bill as it stands is flawed. It is likely that it is not UNCRPD-compliant. My concern is that the Government will miss this opportunity to meet the State's obligations under the UNCRPD, extending rights around capacity to people with psychosocial disabilities.

During the very brief pre-legislative scrutiny process for this Bill, Mental Health Reform and others highlighted that people involuntarily detained under Part 4 of the Mental Health Act 2001 were excluded from the provisions of the 2015 Act. The Government's mental health policy, Sharing the Vision, is person-centred and underlined by principles of human rights and recovery, yet involuntary patients do not have the right to have their advanced wishes on treatment respected. People who are detained in hospitals for mental health treatment are specifically excluded from legally binding advance healthcare directives. They have no legal right to have their advance wishes respected even though they had the capacity to make decisions about their mental healthcare and treatment at the time of making their directives. No other group of individuals is superficially excluded from this legal right. This exclusion is contrary to international human rights standards including the UNCRPD. Therefore I am really heartened to hear that the Minister is taking this exclusion seriously. It is music to my ears. Campaigners have been doing large amounts of work to highlight the issue and it is great that the Minister is listening. I look forward to seeing the Government amendments. I really hope that the issue is resolved. I would like to hear a firmer commitment today. Rather than "intend to" I would like to hear him say that he commits to. That is my ask today.

The Bill uses a functional capacity test that is not compliant with the UNCRPD. Assisted decision-making legislation should not be in the business of excluding those who need support. It should involve identifying what supports individuals need to exercise agency and ensure those supports are reliably provided to everyone who needs them.

We need to be building people up, and not codifying their exclusion from full participation in society. We should not be passing and enacting legislation that is in breach of Ireland's commitments under the convention. It is nonsensical and regressive. The coercive nature of the traditional paternalistic model of mental healthcare has had a disastrous impact on the relationship between many individuals with psychosocial disabilities and the healthcare system in this country. Unfortunately, people who need and want help are unwilling to ask for it because they are unwilling to surrender their rights to autonomy and bodily integrity. Strong advance healthcare directives give individuals engaging with the system the comfort of knowing the parameters they set out when they are feeling well will be followed when they are unwell and unable to fully advocate for themselves. They are an essential tool to recognise and realise the UNCRPD rights of people with mental health issues. They are also a crucial way of mitigating the power imbalance that characterises the doctor-patient relationship.

Several Deputies outlined these issues and others during the Bill's passage through the Dáil. Deputies Cairns, Sherlock and Ward and many others highlighted the Bill's flaws and offered constructive actionable solutions through their contributions and amendments. Unfortunately, most of those amendments were not accepted. That is disappointing. However, I know that the Minister cares deeply about this issue, that he works very hard and that he wants to do right by people who are impacted by the legislation. I hope that the summer recess has provided time for him to think things over and allow him to change course and allow for the creation of a much stronger, more effective and more socially just version of the Bill. It is a massive opportunity to rectify failures in our legal and healthcare system's treatment of individuals with psychosocial disabilities. I hope that the Minister uses this opportunity to make a lasting positive impact. If not, myself and others in the Opposition will continue to battle for a version of this Bill which truly upholds the principles of human rights and autonomy. I look forward to hearing the Minister's commitment and to seeing the amendments to the legislation.