Frances Black (Independent) | Oireachtas source

At a procedural level, this amendment has significant implications for the rights of disabled and older people. It was introduced on Report Stage in the Dáil and was not properly discussed, unfortunately, as that debate was guillotined prior to the full reading of all proposed amendments.The Minister's refusal to agree to this amendment on Committee Stage in the Seanad is a little concerning. He explained that his reason for introducing this provision was to clarify the intersection of the inherent jurisdiction of the High Court and the 2015 Act and that it was important to note that these provisions do not create new powers for the High Court. The Minister also suggested that deletion of this provision would introduce procedural uncertainty where urgent care may be required and would not serve to limit the constitutional power of the High Court in this regard. However, he went on to correctly point out that the court possesses a constitutional role as the guardian of constitutional rights and it is not the power of this or any other House to remove that jurisdiction. It is a little difficult to understand why the Minister believes this provision is necessary and it is not possible for the inherent jurisdiction of the High Court to be removed or even altered.

On Committee Stage, the Minister stated that part of the purpose of introducing the amendment was to signal that such applications should only be brought when the authority of High Court is very much needed to determine a matter in which a person's liberty might be in question. By seeking to qualify the role of the inherent jurisdiction in decision-making regarding the care, treatment and detention of individuals in the 2015 Act, he might be legitimising the option of seeking orders which circumvent the 2015 Act and allow for substitute decision-making entirely contrary to the stated intentions of the legislation. Removing this provision will not impact on the inherent jurisdiction of the High Court. However, its retention risks embedding a twin track for healthcare decision-making which can override the principles of the 2015 Act.

What is important here is compliance. If the Minister is serious about compliance with the obligations of the UNCRPD, he should accept this amendment.