Seanad debates

Thursday, 15 September 2022

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


10:30 am

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

I am pleased to introduce this Bill to the House and I look forward to today's debate on this important legislation, which is required to commence the Assisted Decision-Making (Capacity) Act 2015 in full. That landmark legislation will bring to an end wardship for adults. The State will move away from an outdated and disempowering status approach to persons with capacity difficulties to a new functional model that will place the will and preference of a person at the core of the decisions that affect his or her life.

When I say "status approach" to capacity, I mean the current wardship approach whereby once a person is found to lack legal capacity in one context, he or she is deemed to lack legal capacity in all contexts. When I say that the proposed legislation will move us to a functional approach, I refer to an approach where capacity is assumed as a first principle, the burden of proof rests on rebutting that presumption and a person's decision-making capacity must be enhanced and supported.

Wardship is a disempowering system that places a third party's assessment of a person's best interests above that person's own will and preference. There are many persons currently in wardship who, along with their families and loved ones, are desperately awaiting the end of wardship so that they can take back a measure of control over their own lives. The current legislation, the Lunacy Regulation (Ireland) Act 1871, has run its course. The proposed legislation will give people experiencing diminished capacity the opportunity to participate more equally and meaningfully in our society and greater power to direct the course of their own lives in an independent and dignified manner. It will replace wardship with a series of tiered decision-making supports that will provide the level of assistance and support that a person requires in respect of particular decisions at a particular point in time, grounded in respect for the will and preference of the person being supported.

Given the impact that the legislation will have on people's lives, I cannot overstate the importance of this Bill's enactment. We have been waiting a long time to end wardship and commence the 2015 Act. Many would agree that we have been waiting too long. For every year that has gone by since, people in the unbelievably difficult position of facing the reality of their own diminished capacity or that of a loved one have been left with little option beyond wardship even as alternatives have been desperately sought. Today, the House has the opportunity to provide an alternative.

I will give a broad overview of the Bill and then outline key provisions in each Part. The Bill will, first and foremost, enable us to commence the 2015 Act. The need for amending legislation became clear over the course of intensive interdepartmental work that had been under way to prepare for the full operationalisation of the Act and the Decision Support Service, DSS. The DSS is the organisation that will operate the progressive provisions of the 2015 Act. The Bill is also being used to progress legislative measures to realise further the United Nations Convention on the Rights of Persons with Disabilities, UNCRPD, in Ireland following ratification of that convention in 2018. The Bill will streamline processes in the interests of those who will rely on the Act's provisions. It will ensure that effective safeguards are in place throughout the Act and that the presumption of capacity and the paramountcy of a person's will and preference are enshrined at all stages and levels. In that sense, the Bill does not depart from the broad policy of the 2015 Act. Rather, it will enable the better functioning of that Act.

Part 1 sets out the Title of the Bill and provides for commencement orders for the coming into force of the Bill once enacted. Sections relating to Part 8 of the 2015 Act will be commenced by my colleague, the Minister for Health, Deputy Stephen Donnelly, given that Part 8 of that Act lies with him. I will be pursuing co-ordinated commencement orders so that the Act comes into force as a whole.

Part 1 sets out key definitions, among which are changes that will allow persons with capacity difficulties to participate in health research. It also provides for various repeals, including the removal of provisions in the 2015 Act permitting the use of restraint in private settings. A review of Part 8, relating to advance healthcare directives, will no longer be separately required by the Minister for Health and has instead been incorporated into the overall review of the Act.

Part 2 deals with detailed amendments to the Act. Newly included provisions will allow for the DSS to draw up its own forms and administrative procedures as well as to resolve certain complaints informally without the need for automatic and inappropriate referrals to the courts. The director of the DSS will be given additional powers in this regard to investigate and informally resolve complaints. This will help to reduce the administrative burden and costs in line with the recommendations in the pre-legislative scrutiny, PLS, report.

The DSS will provide for the remuneration of panel-appointed decision-making representatives so that key supports under the Act will be available for all persons regardless of personal means. In a similar fashion, legal aid is being extended to existing wards to minimise costs in line with recommendations made in earlier debates and the PLS report.

Significantly, a new system of enduring power of attorney, EPA, is being introduced under which there will be a two-stage process for creating an EPA. An EPA will be created when a person has capacity and will then be registered with the DSS, with an attorney coming forward to activate the power once the relevant person has lost capacity. This aligns with international models and will allow matters relating to an EPA to be clarified while a person still has capacity. Provisions will allow a relevant person to make changes to an EPA at any point following registration, including revoking it, prior to any loss of capacity. Attorneys appointed under an EPA will be prohibited from making treatment decisions, which will give clarity to medical professionals that a designated healthcare representative is the appropriate decision supporter for medical issues in the context of advance planning. The DSS will draw up procedures and set conditions where a trust corporation is acting as an attorney for a donor creating an EPA. The Bill clarifies the jurisdiction of the Circuit Court. Amendments will provide for fewer direct referrals to the Circuit Court where that is not appropriate, or is overly cumbersome or unnecessary. Provision has also been introduced to give clarity that the inherent jurisdiction of the High Court remains in matters regarding treatment and detention. Such powers are already possessed by the High Court under the Constitution. Therefore, the Act does not create new powers in this regard but clarifies the intersection of the Act with the existing powers of the High Court.

Under other provisions in Part 2, the DSS will maintain a register of decision support agreements ensuring well-maintained and secure retention of records and agreements. Provision is made for inspection of those records. The guiding principles provided for in the 2015 Act have been expanded to apply explicitly to all decision supporters equally, which is an important safeguard for the expression of the relevant person's will and preference. In line with recommendations from the pre-legislative scrutiny process, proceedings under the Act will revert to being held in camera. Changes will broaden the areas in which an offence may be committed against the relevant person. The director will be able to apply for a temporary prohibition order where appropriate.

As recommended in the pre-legislative scrutiny report, and as I introduced on Report Stage in the Dáil, the Bill will delete section 85(6) of the 2015 Act, which previously limited the application of advanced healthcare directives in the context of pregnancy. Corporate governance responsibility for the DSS is being transferred from the Department of Health to my Department. Certain reporting requirements and responsibilities relating to Part 8 of the 2015 Act will be retained by the Minister for Health. A reduced number of capacity assessments will be required for assessments undertaken in relation to co-decision-making agreements, and at the EPA registration stage, in line with broad recommendations made in the pre-legislative scrutiny report.

As I committed to on previous Stages in the Dáil, and in line with recommendations of the pre-legislative scrutiny report, legal aid has been extended to persons under Part 6 of the 2015 Act. This is a very significant step for persons exiting wardship. Review periods for wards will also be aligned with those of other persons under the 2015 Act and wards will be present in court for their reviews. This will strengthen protections for the rights of wards when being discharged from wardship. Where the existing ward may only require a co-decision-maker, but none is available, an appointed decision-making representative will now endeavour to jointly make decisions with them insofar as is practicable.

Transition provisions are included to provide for an orderly transition between the wardship system and the new arrangements under the 2015 Act. On Report Stage, I introduced amendments to give clarity for persons in respect of whom a wardship application has been made but is unresolved at the time of the commencement of the 2015 Act. Following further consideration over the summer, I will be seeking to bring some further amendments to those provisions to give further clarity on Committee Stage in this House.

Part 3 concerns amendments to other Acts made by the Bill and is chiefly concerned with Ireland's important obligations under the UNCRPD. Ireland ratified the UNCRPD in 2018 and this Bill is an opportunity to give legislative effect to certain obligations thereunder and to advance the rights of persons with disabilities. Amendments are made to the Juries Act 1976 to allow persons with hearing impairments to sit on juries. The Bill also seeks to amend the Electoral Act 1992 by removing the prohibition on persons "of unsound mind" from standing for elections to the Dáil.

Amendments to the establishing legislation for the National Disability Authority are made which allow for staff of that body to become civil servants of the State. Amendments are introduced that will legislate for the role of the Irish Human Rights and Equality Commission, IHREC, as Ireland's dedicated UNCRPD national monitoring body. The Bill provides that IHREC will be supported by the National Disability Authority in this role. In a significant move, the Bill will provide for the gradual doubling of the minimum statutory target for the employment of persons with disabilities in the public sector, which will double from its current number of 3% to 6% on a phased basis by 2025. Amendments are made to allow a partial freedom of information exemption relating to investigations undertaken by the DSS. This is consistent with other exemptions where individual privacy rights and the integrity and effectiveness of investigation processes are concerned.

Since introducing the Bill earlier this year, there has been significant discussion on the proposed provisions. I have listened very closely and very carefully to those discussions. I will take this opportunity to signal that I will be seeking the approval of my Cabinet colleagues to bring further amendments on Committee Stage to address a number of key issues. In the main, these will be by way of further procedural amendments to the Act, further safeguarding measures, and further cost reduction measures for the people who will rely on the Act. I am also mindful of the consultation obligations set out in the UNCRPD.

However, there is one issue in particular I will specifically address. With the help of officials in the Department of the Health and the Office of the Attorney General, my Department continues to examine the extension of assisted decision-making supports to those whose involuntary treatment is regulated under Part 4 of the Mental Health Act. This remains an issue that l, and the wider Government, are extremely keen to address and I have gone on record to state that we must move to parity in this area. While it must be acknowledged that fundamental reform of the law on involuntary treatment will necessarily fall to more dedicated legislation, such as the ongoing review of the Mental Health Act itself, I remain committed to doing as much as can be done in this Bill before it leaves the Houses, and I intend to bring proposals on Committee Stage in this House to advance that important matter.

The amendment Bill before us today will allow for the commencement of the Assisted Decision-Making (Capacity) Act 2015. We will end wardship and move away from a disempowering and paternalistic "best interest" approach in favour of enshrining the primacy of a person's will and preference. We will legislate for the presumption of a person's capacity and ensure that where we encounter diminished capacity, we maximise and support a person's decision-making power in an explicitly rights-based framework. This reform is long awaited and long overdue. I commend this Bill to the House.


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