Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

I thank Senators for their contributions and their support in passing this critical legislation. The move away from wardship is long overdue. It represents a huge step forward in further aligning Ireland with our commitments under the UNCRPD. Senators have spoken very eloquently about how the Assisted Decision-Making (Capacity) Act was passed in 2015 and for seven years we have seen no action. We have not seen those important provisions implemented. To be honest, I still cannot get a good explanation of why that is. No one has really been able to make that clear to me. I want to be absolutely clear that I do not want another term of government to elapse, or for another Minister to come through the office, without having that resolved. I am determined to get this resolved. That is why I wanted to move swiftly to get this legislation here.

There was some criticism of the pace with which the legislation was brought forward. Throughout the year, as I answered parliamentary questions and once or twice when I spoke here, I said very clearly that I wanted to get the DSS operational in June of this year. The DSS itself was working towards that. The HSE and many banks and building societies that had to change their processes were all working towards that date. There is an outstanding court case challenging the ward system, rightly. It will win because wardship is unconstitutional. At a previous date, a commitment was given that we would bring forward the legislation that would abolish wardship by the end of the Dáil term. We had pre-legislative scrutiny and then Second Stage which was over two days. There was Committee Stage and Report Stage. We did not truncate or combine anything in the Dáil. We took amendments at both Stages. I listened very carefully to debates in the Dáil and to the concerns particularly on the issue of advance healthcare directives. I made the determination, notwithstanding the risks and the fact that there is an outstanding case which could have come in against the Government, that it was right that we took that extra time. That is why we are back here in September. I intended to get it done before the end of the last term but we took the time to go through it.

The officials in my Department have done intensive work with other Departments, primarily the Department of Health, to try to get a resolution to some of the key issues. The issue that was most difficult and on which we focused most was the applicability of advance healthcare directives to people who are involuntarily detained. Under the existing legislation they do not apply. We have engaged significantly with the Department of Health.As Senator Black said, there is a concurrence of two pieces of legislation, this Bill and the existing Mental Health Act 2001, which is outdated and in the process of being reformed. The two need to interact with each other. There is an issue with using this Bill to rewrite provisions of a Bill that is about to be rewritten itself and how those two elements come together. Next week, I will bring to Cabinet a further set of amendments to this legislation, which I will introduce on Committee Stage in this House. Included in those is one that will go in some way to address the issue of the application of advanced healthcare directives for people in involuntary detention. I recognise it will not address the entire issue but it will go a significant way. I believe the final part of that can be addressed in the next mental health Bill to reform the existing Act.

Regarding the timeline and commitment, I need to get Government approval which is why I cannot talk about the text of the amendment today. I will be seeking Government approval at the Cabinet meeting next Tuesday. That will then be submitted shortly for Committee Stage and Senators can review how far that advances the issue. As I have said previously, it will not conclusively address the issue, but it will go a significant way in advancing it. We always need to work towards advancing the matter. I am not leaving a question hanging because I believe the mental health Bill can get the final element of this issue addressed.

Regarding the undo extension of wardships, as a Senator said, we all know the severe problems with wardships. However, for some people they currently provide necessary legal protection and without them, these people would be in an incredibly vulnerable position. We are moving from an old system that we recognise is not good enough to a new system that is vastly improved. However, even in that transition some people will need the support of wardship because without it, they have no protection at all. That is why we have added in a transition mechanism. That is particularly appropriate because that transition will now take a bit longer as the Bill was not passed before the summer recess. I hope it will be passed in the coming months.

I introduced amendments on Report Stage in the Dáil to allow for wardship applications which had come before the commencement of the Assisted Decision-Making (Capacity) Act to be progressed to completion. These amendments ensure that persons who require support immediately on the commencement time of the Act do not fall between the change of the legal systems and incur the cost and delay of switching a partially completed wardship application to a brand-new decision support application. There are important caveats here. If a decision supporter is appointed before a transitional wardship application is finished, the wardship application will be withdrawn immediately. In one of the amendments I will bring to Cabinet next week, I will seek to bring further clarity on this. This is not about extending the existence of wardships but about recognising that for a very small number of people, the interregnum between the abolition of wardships and the creation of the DSS is a vulnerable time and that their wardship should bridge it. A pathway from wardship to the new DSS process is clearly set out in the amendments and will be further clarified.

On the interaction of this legislation with the changes made to our Constitution following the repeal of the eighth amendment, I need to be very clear that section 85(6) of the legislation was repealed on Report Stage in the Dáil on foot of an amendment I introduced. The 2015 Act had such a provision due to the previous constitutional position and that has now been repealed in the Bill, as passed by the Dáil and now before this House. That issue has been conclusively addressed, as was entirely necessary.

I will now speak to some of the broader issues in the legislation. Even though the key focus is the ending of wardships and providing mechanisms for the DSS to operate, Senator Pauline O'Reilly spoke about the work we are doing to increase the obligation of the state to employ persons with disability. Right now, that obligation is at 3% and is just being met; I think the figure is about 3.1% at the moment based on the most recent report produced by National Disability Authority. That equates to approximately 7,500 people. If we can double that again, we will have approximately 15,000 people with a disability employed in the public service. That will be hard to achieve. We have been hovering around 3.1%, 3.2% or 3.3% in recent years. There will be a huge obligation on all Departments, State agencies and the entire apparatus of the State to do more to support the inclusion of persons with disabilities. More also needs to be done in the private sector.

The Minister of State, Deputy Rabbitte, and I are part of the comprehensive employment strategy implementation group chaired by Fergus Finlay. More needs to be done on the goal of employment, which is one that many persons with disability share. I had a meeting at the Blanchardstown Centre for Independent Living just before the summer where I met one group of young people all with Down's syndrome, some of whom have jobs one day a week in the Blanchardstown centre. They all wanted employment and those who did not have it were hugely jealous of those who did have it. They spoke about preparing a CV and going out knocking on doors but just not getting interviews. While it was uplifting, I am very conscious of the sense of disappointment and what having a job would do for their self-esteem and sense of person. More needs to be done in the public and private sectors.

This is important legislation which has gone through extensive change during is passage through the Dáil. We will introduce more changes on Committee Stage in this House and Members can engage at that point. Wardships were meant to have been abolished a number of years ago but were not. The Bill provides us with a mechanism to ensure that a DSS is in place and we are ready to provide a range of supports to persons who have an issue with capacity according to their need. The Bill needs to be passed for us to be able to consign wardship to the history books where it should remain. I look forward to engaging with Members of this House as we take the Bill through Committee and Report Stages.