Seanad debates

Wednesday, 1 December 2010

6:00 pm

Photo of Fidelma Healy EamesFidelma Healy Eames (Fine Gael)
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I welcome the Minister of State at the Department of Health and Children, Deputy Moloney, who is responsible for disability. I want him to outline the reason for the delay in ratification of the UN Convention on the Rights of People with Disabilities and the timeframe for its delivery. If we had the needs of people with disabilities at heart, ratification of the convention would be achieved without further delay. When can we expect ratification to take place? Ironically, Ireland was among the first group of countries to sign the convention, subject to ratification, when it opened for signature on 30 March 2007. The convention entered into force on 3 May 2008 and, to date, 96 countries have ratified it. Ireland is not one of them. The European Union is in the process of becoming a signatory or party to the convention, making it the first comprehensive human rights convention to which the Union will become a party, yet it has not been ratified in Ireland. This makes our commitment to human rights disgraceful.

The UN Convention on the Rights of People with Disabilities is a move away from viewing persons with disabilities as objects of charity, medical treatment and social protection towards viewing them as subjects with rights. "Rights" is the key word. The convention does not create new rights; it only aims to make the full sweep of existing rights equally effective for all persons with disabilities.

We have two Acts that have not been implemented in full, one of which the Disability Act. It has only been implemented in respect of those up to the age of five or six years. The Minister of State will be aware that we were promised progressive realisation of people's needs over time. Many of the sections of the Education for Persons with Special Educational Needs Act have not been implemented. This means children with disabilities and special needs in schools are not protected by law. There is still no means by which one can enforce an individual education plan, which the children concerned obviously need. They are not on a level playing field with their peers in the classroom

Professor Gerard Quinn of the disability law unit of the National University of Ireland, Galway, has suggested in The Irish Times that Ireland has delayed ratification of the convention until it can reform its outdated legal incapacity laws in keeping with Article 12 of the convention. These laws date from a time when people with disabilities were dealt with as objects. Article 12 insists on a plenary right to decide for oneself and a corollary right to support decision-making when that capacity is reduced. This is a true human right. This article, like all other provisions in the convention, makes no distinction between those with intellectual disabilities and others.

Ratification of the convention, we are told, depends on the mental capacity Bill. When asked by Deputy Naughten about the progress of that Bill on 10 November, the Taoiseach said the detailed provisions of the Bill were at an advanced stage and that it was expected they would be published in the current Dáil session. When will this happen? We only have a very short time left.

According to a disability campaigner from a family affected by disability, ratification of the convention must be a priority to protect the fundamental rights of people who feel forgotten and marginalised. The same people are suffering further in the current climate owing to cutbacks in health and disability services. Both the Minister of State and I know that people with disabilities are always the first to be at risk of poverty. Even in the boom times, this was the case. It is clear that the persistent and cumulative impact of the financial crisis threatens the progress made toward achieving equal rights for people with disabilities. The recession has had a disproportionately negative impact on them.

One interesting aspect of the convention, according to Professor Quinn, is that it does not require every goal to be achieved at once.

Some deference is due to states with respect to the allocation of scarce resources, which would suit Ireland. We accept that resources here are scarce. However, that does not mean we should not ratify the convention or implement the law. It is critically important that we move forward on this issue, particularly during a period of recession when, in many cases, the temptation may be to cut services. In the past the Government stated that if the legislation was fully implemented, people with disabilities would bankrupt the country. We know who bankrupted the country - it was the Government which made bad decisions and the banks.

Friday next, 3 December, is International Day of Persons with Disabilities and the theme this year is keeping the promise for disability. I appeal to the Minister of State to keep the promise and listen to the calls of those with disabilities. The UN Convention on the Rights of Persons with Disabilities must be ratified without further delay.

A support group in Galway, Hope for Disability, is of the view that this matter is extremely important and believes the issue of rights to be the key barrier improvindg the quality of life of people with disabilities. Will it be the Minister of State's legacy to have the convention ratified before the end of this Dáil term? I will be delighted if he indicates that this will be the case.

Photo of John MoloneyJohn Moloney (Laois-Offaly, Fianna Fail)
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I accept the sincerity of Senator Healy Eames regarding the proposals she has made. I am aware that she has a deep interest in this issue. I am not really a believer in legacies, as such. However, when I was appointed to the Department over two years ago, I gave certain commitments. I have always made the point that the €1.6 billion allocated to the disability sector should not be a major issue for the Government. I have also made the point that people with disabilities should have the right to choose the type of services which they, as individuals, might require.

It takes time to make changes. I initiated a value for money review 15 months ago in the clear understanding that it was not to be an attempt by the Government to hive off moneys from the disability sector and allocate them elsewhere. To try to give some credibility to my decision in this regard, I appointed two people from the disability sector - Mr. John Dolan from the Disability Federation of Ireland and Mr. Brendan Broderick - to serve on the review committee.

Senator Healy Eames rightly mentioned that next Friday is International Day of Persons with Disabilities. It has always been my intention, prior to my leaving the Department, to issue clear policy proposals as to how changes can be made. I will be doing this on Friday. I refer, in particular, to individualised payments for people with disabilities. I will bring some clarity to the entire matter on Friday.

Photo of Fidelma Healy EamesFidelma Healy Eames (Fine Gael)
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Therefdore, the Minister of State is not going to outline the position now.

Photo of John MoloneyJohn Moloney (Laois-Offaly, Fianna Fail)
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No, because I have not finalised my proposals. I do not intend to be glib, but a certain amount of work remains to be done. I gave a commitment a long time ago that I would bring forward specific proposals on Friday next.

I completely accept there is a need to have the mental capacity Bill published. This time last year I gave a clear commitment at the Inclusion Ireland conference in Killarney that the legislation would be introduced before the summer. Unfortunately, that did not happen. The Senator outlined the position well in that ratifying the UN convention does not need to involve the provision of major funding in the future. However, it is clear that we cannot ratify the convention until the mental capacity legislation is in place. I reiterate my commitment that the Bill will be published prior to the end of this session. I have apologised for the fact that it was not possible to publish it prior to the end of the summer session.

Photo of Fidelma Healy EamesFidelma Healy Eames (Fine Gael)
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Therefore, the mental capacity Bill will be published this session.

Photo of John MoloneyJohn Moloney (Laois-Offaly, Fianna Fail)
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Yes, and I am well aware that only a few short weeks of the current session remain. I will not use the excuse of budgetary considerations, etc. As Minister of State with responsibility in this area, it is up to me to ensure the legislation is published during the remaining two or three weeks of the session.

I wish to provide a full reply on the specific matter to which the Senator refers. In that context, the United Nations Convention on the Rights of Persons with Disabilities is an important human rights instrument with an explicit social development dimension. It adopts a broad categorisation of persons with disabilities and reaffirms that all persons with all types of disability must enjoy all human rights and fundamental freedoms of existing United Nations human rights conventions.

Not long ago I met representatives of Amnesty International which has been campaigning for some time in respect of mental health as a human right. That is Amnesty International's prerogative and it is the issue on which it is placing emphasis. I provided its representatives with a commitment on this matter when I met them three weeks ago. Last week the Minister of State at the Departments of Justice and Law Reform, Community, Equality and Gaeltacht Affairs and Education and Skills, Deputy Mary Alexandra White, and the Minister for Community, Equality and Gaeltacht Affairs, Deputy Carey, and I also met the representatives and I provided them with the same commitment I have just given to the Senator. While I do not see the Government's term being extended beyond February or March next, it is important that the legislation be dealt with in order that we might implement the provisions of the convention.

Ireland was in the first group of countries to sign this very important convention when it opened for signature on 30 March 2007 and is totally committed to the implementation of its provisions and the consequent improvements in the lives of people with disabilities. We are well advanced towards achieving this through the national disability strategy, the ongoing implementation of which is informed by the requirements of the UN convention and which comprehends many of its provisions. In addition, an interdepartmental committee on the UN Convention on the Rights of Persons with Disabilities monitors the remaining legislative and administrative actions required to enable the State to formally ratify the convention. This committee has developed a programme, on which work is progressing, to address the matters that need to be aligned with the convention.

It is the Government's intention to formally ratify the convention as quickly as possible. However, as the Senator is undoubtedly aware, Ireland does not tend to formally ratify treaties until it is, first, in a position to comply with the obligations imposed by such treaties, including by amending domestic legislation, as necessary. One of the key legislative requirements identified by the interdepartmental committee in this regard is the introduction of mental capacity legislation, which is the responsibility of the Department of Justice and Law Reform. However, I have always stated that, as Minister of State with responsibility for disability and mental health, it is my intention to drive the legislation forward.

As indicated in the Government's legislative programme, it is intended that the mental capacity Bill will be published during the current Dáil session. The Senator may state the term "intended" is too loose in nature. However, I reiterate my commitment to publish the legislation during the current session. The main purpose of the Bill is to reform the wards of court system in so far as it applies to adults and replace it with a modern statutory framework governing decision-making on behalf of persons who lack capacity. The wards of court system is outdated and incapable of coping with the existing and projected demographic growth in the numbers of persons who lack capacity. The Bill will provide greater protection for a range of adults, including persons with intellectual disabilities, persons suffering from dementia or mental illness and persons who have acquired brain injuries through trauma or accident.

The main provisions of the Bill include setting down guiding principles to assist both the courts and persons making decisions on behalf of adults who lack capacity. The statutory guiding principles will require that any act done or decision made on behalf of a person must be in that person's best interests. The Bill will also provide that a person is entitled to supported or assisted decision-making. Where it is not possible to support a person in exercising capacity or making a decision, the Bill will provide that the court or a personal guardian appointed thereby will act as the substitute decision-maker on his or her behalf. Under the Bill, an office of the public guardian which will be responsible for the supervision of personal guardians and donees of enduring powers of attorney will be established. The Bill will also repeal and subsume the provisions of the Powers of Attorney Act 1996. The Bill's passage will give effect to the Hague Convention on the International Protection of Adults, as well as adding substantially to the overall progress made in implementation of the requirements towards ratification of the UN Convention on the Rights of Persons with Disabilities.

While Ireland has not yet ratified the convention, the national disability strategy and the work of the interdepartmental committee have ensured considerable and ongoing progress is being made. The actual implementation of the convention will be well advanced by the time the formal ratification process has been completed. I will ensure the legislation is published before the end of the session.

Photo of Fidelma Healy EamesFidelma Healy Eames (Fine Gael)
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I did not receive a copy of the Minister of State's script.

Photo of John MoloneyJohn Moloney (Laois-Offaly, Fianna Fail)
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I apologise to the Senator.

Photo of Fidelma Healy EamesFidelma Healy Eames (Fine Gael)
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I would appreciate it if a copy could be forwarded to me, particularly in view of the importance of this matter to the people to whom it concerns. I like the Minister of State's straightforward manner. He tends to take it on the chin. However, we have still not been provided with concrete dates. He has indicated that the mental capacity Bill will be published during this session. I accept his commitment in that regard, but will he indicate when the convention will be ratified?

8:00 pm

Photo of John MoloneyJohn Moloney (Laois-Offaly, Fianna Fail)
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I have no intention of playing some sort of get out of jail free card.

First, I cannot ratify it until I bring in the essential element, that is, the mental capacity Bill, which will be published this session. I am not able to say when, but I ask Senator Healy Eames to believe that if we are stating consistently all along that we cannot ratify until we have the mental capacity Bill, to my mind that clearly leads the way for us then to ratify the UN convention, although I accept it is not enough for Senator Healy Eames or the House. Many Ministers have said that we cannot ratify until we have published the mental capacity Bill. I ask Senator Healy Eames to understand that such would be the Government's intention for early next year.

Photo of Fidelma Healy EamesFidelma Healy Eames (Fine Gael)
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I thank the Minister of State.