Seanad debates

Thursday, 15 September 2022

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


Question proposed: "That the Bill be now read a Second Time."

10:30 am

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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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 The State will move away from an outdated and disempowering status approach to persons with capacity difficulties to a new functional model that will place the will and preference of a person at the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.

Photo of Diarmuid WilsonDiarmuid Wilson (Fianna Fail)
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I welcome the Minister, and the observers in the Gallery, to the House. I am responding on behalf of my colleague, Senator McGreehan, who is unfortunately held up but hopes to be here before the end of the debate on the Bill.

I will put on the record of the House that Fianna Fáil supports this Bill, which provides the necessary amendments allowing for the commencement of the remaining parts of the Assisted Decision-Making (Capacity) Act 2015 that was signed into law in December 2015. A number of sections of the 2015 Act have not yet been commenced, including assisted decision-making, co-decision-making, enduring power of attorney, advanced healthcare directives and detention matters. Commencement of the Act is a key programme for Government commitment and a clear obligation under the UNCRPD. The 2015 Act strengthened the rights of all individuals but will have particular relevance for people with intellectual disabilities, older people with diminished capacity or dementia, and people whose capacity has been affected by a traumatic injury. It recognises that all people have equal legal rights and respects the right of everyone to make choices for themselves and at all times to be treated with dignity and respect.

The legislation also ensures that people can plan ahead and record their decisions in the event they lose capacity to make decisions in the future. The Act supports the implementation of an expanded decision support service. I understand the DSS will ensure that this modern human rights-focused and person-centred legal architecture can support and vindicate decision-making for the estimated 200,000 people in Ireland with an issue related to capacity. The Bill also enshrines in law a requirement for the gradual doubling of the minimum statutory target for the employment of persons with disabilities in the public sector to reach, as the Minister outlined, 6% by 2025.

We very much welcome this legislation. I again apologise for my colleague, who hopes to be here before the end of the debate to give her major contribution. I thank the Minister for his comprehensive introductory speech.

Photo of Pauline O'ReillyPauline O'Reilly (Green Party)
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The Minister is very welcome to the House. The antiquated Lunacy Regulation (Ireland) Act 1871 remains a reality in the lives of 3,000 adults in Ireland so we need to get this Bill over the line.I have heard very strongly from those stakeholder groups that have been looking forward to this day and to the day when it is signed into law.

That is to do with those who are wards of court at the moment but the Bill goes beyond that because it also puts in place measures to support all of those with disabilities who have capacity issues. Being made a ward of court, up until the Bill is passed, strips a person of his or her decision-making rights. It means that many people with intellectual disabilities continue to have little or no say about where they live, financial decisions, medical decisions or decisions on marriage. When we look to the programme for Government and all the commitments we made therein, the legislation makes good on a series of these recommendations, particularly on the UNCRPD. These include the following commitments: to commence this Bill; "Improve access for people with disabilities to jury service" under this Bill; "Double the target for employment of people with disabilities in the public service [from 3%] to 6%"; and "Remove outdated references to 'persons of unsound mind' from the Statute Book", alongside a general strengthening of the implementation and monitoring of Ireland's responsibilities under the UNCRPD to go further and strengthen the monitoring.

It is important to hone in on a couple of elements of the Bill. The overreaching intention is to empower people who need it. Decisions are not taken on people's behalf but they are supported and assisted, where appropriate, in taking these decisions. The provisions around the Decision Support Service show us that the Government is set to operationalise an organisation that is truly fit for purpose to enable this mechanism. Second, it is also important that we protect and support people. The Bill ensures that someone who has previously committed an offence against them or their child is prohibited from a decision supporting role in their lives. It also makes fraud and coercion an offence. These are extremely important safeguards but one Part of the Bill that probably has not received as much attention, which is in the programme for Government, relates to employment. The levels of employment for those with intellectual disabilities in this country are shockingly low. I would like to see us go beyond the public service, which I will get to.

The Bill provides for a doubling of employment in the public service and that is truly meaningful beyond the 3,000 people who are wards of court. The next step then will be monitoring the success of that, as the legislation the Minister brought before us on pay disparity between genders was. Monitoring of this will likewise be important so that it is not just on paper that we double it. If we look at private employment, France and Luxembourg are examples that I have looked at where these quotas have been brought in for the private sector. In France, if employers have 20 or more employees, 6% of the workforce should be disabled or they will be liable to make a payment to the state. In Luxembourg, if employers have 25 or more employees they must employ at least one full-time worker with a disability. If they have 50 or more that increases to 2% of their workforce and if they have 300 or more, that increases to 4% of their workforce. That needs to be the next step and those obligations are binding in those countries. I am happy that the Minister is considering amendments. I ask him to examine Article 12 of the UNCRPD because there has been commentary around that and in particular I mention Professor Jonas Ruškus. He says the Bill is not considered to be fully compliant with Article 12 and, therefore, I would like to know where there will be amendments or whether the Minister will address those points.

The Minister comes before us a lot with legislation on a broad range of topics but there is something underpinning all of that, namely a rights-based approach. When the Government ends, one of the clearest legacies will be from the Minister because he has taken deeply important steps in showing a commitment to human rights, a mastery of the law and a determination when it comes to helping those most in need to have their lives utterly transformed by these Bills. This is another Bill that puts people at its centre and it sits alongside his other work in helping: refugees; those who are undocumented; and members of the LGBTQ+ community and in righting historical wrongs, supporting families and truly listening to children. It is important to take this opportunity to say that. I look forward to discussing this further on Committee Stage and to honing in on some of those issues the Minister said he will address as amendments. As it stands, the Bill will transform the lives of those who are wards of court.

Photo of Fintan WarfieldFintan Warfield (Sinn Fein)
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I welcome the Minister to the House and I hope he had a nice summer. I too welcome the commitments he has made to possibly amend the Bill. That is welcome and we wait to see those amendments. We will bring forward our own amendments, as I know other Senators will during the other Stages. Sinn Féin supports the Bill and the need to reform how wardships of court are legislated for in the State. As Senator O'Reilly alluded to, not fulfilling our obligations under the UNCRPD is a missed opportunity to make Ireland a leader in capacity legislation. We tabled a number of amendments in the Dáil to make the legislation inclusive and more human rights-compliant. As has been mentioned, that the Bill repeals the Marriage of Lunatics Bill 1811 and the Lunacy Regulation (Ireland) Bill 1871 says enough about how important it was that we update this legislation and how that is so long overdue.

The Bill the Government proposes is not compliant with Article 12 of the UNCRPD because it allows for an individual's legal capacity to be denied based on an assessment of his or her mental capacity. The exclusion is discriminatory towards people with severe and enduring mental health difficulties or psychosocial disabilities. That the Government expects that the reform of the Mental Health Act 2001 will deal with this simply does not wash. The Act has not been reformed since 2001 and the principal Act we are dealing with is from 2015, seven years ago. In the meantime, people who have come under the Mental Health Act 2001 do not have the same rights as other people with disabilities when it comes to advanced healthcare directives.

The use of advance healthcare directives must be awarded to those who come under the Act. If that does not happen it could mean, in layman's terms, that if a person who comes under the Act goes to the trouble of doing an advanced healthcare directive, it will not be worth the paper it is written on. For example, if a person states in his or her advance healthcare directive that he or she does not consent to electroconvulsive therapy, ECT, also known as electric shock treatment, and they are subsequently detained under the Mental Health Act, his or her wishes may not be followed. That could easily happen, and it is already happening. In 2020, 20% of all ECTs administered in this State were done without consent, with 442 patients subjected to this treatment without their consent. As the legislation stands, people who are involuntarily detained do not have a right to have their advance wishes about treatment respected, even though they had the capacity to make decisions about their mental healthcare and treatment at the time of making the directive. No other group of individuals was specifically excluded from this legal right. The Government's refusal to include people detained under the Mental Health Act 2001 is discriminatory and Sinn Féin will table amendments to resolve that issue.

Another issue we have, which was mentioned during pre-legislative scrutiny, is the rush to process this legislation. No one wanted to delay the Bill but we must get it right.We must also ensure that everyone, particularly those affected with a disability, have a right to fully understand the legislation. The Minister's rationale for the rushed process was that a constitutional challenge was ongoing. A response to a parliamentary question tabled by my colleague, Deputy Mark Ward, states: "The constitutional challenge was adjourned on the basis that wardship would be abolished in orderly fashion by an Act of the Oireachtas, and this remains the case presently". Can the Minister clarify if this was the case and that the constitutional challenge was not the reason for rushing the legislation through the Dáil?

The Bill does not remove a section of the Assisted Decision-Making (Capacity) Act 2015 that reflects the situation prior to the repeal of the eighth amendment. An advance healthcare directive is a statement that people can make on the types of medical or surgical treatments they want, or do not want, to receive if they are unable to make such decisions in the future. However, under section 85(6) of the Act, an advance healthcare directive is not valid or applicable if it includes a refusal of treatment where such refusal "would have a deleterious effect on the unborn". Parts of an individual's advance healthcare directive may be disregarded if refusal of a treatment would have such an effect. This means a person's will to receive, or refuse, a required treatment is restricted if she is pregnant. This section reflects the language of the eighth amendment and it has no place in post-repeal Ireland.

Professor Eilionóir Flynn of the National University of Ireland Galway stated at the Oireachtas committee: "These sections are simply unnecessary and can be deleted from the legislation." It is welcome that there appears to be a willingness on the part of the Minister to do that. However, the question remains as to why this provision has not been amended. It is evidence of how rushed this legislation has been.

The Bill requires amendments and the Minister has committed to bringing forward some of them. A test for all of us here in the Seanad will be to address some of the main issues from a human rights perspective. The Bill continues to deny legal and binding advance healthcare directives to people detained under the Mental Health Act. The Bill fails to abolish the functional test of mental capacity, which has been confirmed to be a violation of human rights by the UNCRPD. The Bill does not guarantee access to justice for people whose decision supporters may be removed from them; maintains discrimination, especially against people with intellectual disabilities, in its determination of eligibility for jury service; enshrines a medical model of disability in determining the eligibility of members of the Irish Human Rights and Equality Commission, IHREC's, disability advisory committee, thus hampering the work of the committee; prolongs the archaic and unconstitutional ward of court system; and codifies the inherent jurisdiction of the High Court, which grants wide-ranging powers to judges to impose treatment without consent, authorise restraint and place people in institutional settings. This is without any specific legal basis or mandatory review and will imbed a dangerous parallel system alongside the new assisted decision-making regime.

These are the issues that we must deal with on Committee Stage and I welcome the fact the Minister will bring forward some amendments.

Photo of Mary Seery KearneyMary Seery Kearney (Fine Gael)
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I welcome the fact that the Bill is finally before this House and we, in Fine Gael, support the Bill. We need to get movement on the areas of the original Act that have not been commenced. Significant hardship has been caused to individuals, and families, in the time that we have waited for this legislation and the statutory framework that it facilitates. I am delighted that the Bill is here and we are on the road to putting all of it in place. It is shocking that it has taken until 2022 to repeal Acts that date from the 1800s. The language used in them, and the manner in which they classify people, is truly appalling and, therefore, I am glad that we will close that phase of our history.

There should always be a presumption of capacity. The burden should lie on others, and not on the individual, to demonstrate that he or she has capacity. The cultural shift in this legislation and the previous Act is very much welcome. It is a fact and it is a human right, which should be welcomed but this legislation is seriously overdue. The framework it puts in place and consolidates is modern and respectful and, in that respect, it is very important that we urge the acceptance of this legislation and see it fully functioning as quickly as possible.

I am very grateful for the clarifications by the Minister regarding Committee and Report Stages in the Dáil where many concerns arose from the pre-legislative scrutiny report. The Minister's response rested with me in terms of the many issues that arose and remain.

He spoke about mental health reform and the need to engage with the Mental Health Act in his contribution. Part of what I want to do is reiterate the concerns expressed by the Independent Living Movement Ireland on mental health reform with regard to the implications for persons with mental health issues. The interaction of this Bill with the Mental Health Act causes concerns among people such as Damien Walshe who advocated wonderfully that this legislation is likely to deny people their rights, and will be in breach of equality legislation as well as our obligations under the UNCRPD. I acknowledge that the Minister has stated that he will bring forward amendments and I look forward to them.

It is important that we highlight what was said by Damien Walshe. He said:

Central to the aim of the Assisted Decision-Making (Capacity) legislation is to safeguard disabled people’s right to make decisions and ensure that disabled people in Ireland are recognised equally before the law .. At present, the legislation allows for people involuntarily detained under the Mental Health Act to be denied the right to legally binding advance healthcare directives. The legislation also proposes a functional test of mental capacity, which is contrary to the assumption of capacity of people to make their own decisions, with appropriate supports. We feel that if the legislation is passed in its current form, it would be in violation of the Equal Status Acts.

I look forward to reading the Minister's amendments on that. It is important that we ensure that we do not further marginalise any group within our disability community. It is concerning that anything we bring into play would further deny rights or leave any group out. The Mental Health Reform organisation has expressed similar concerns.

Other concerns arose from pre-legislative scrutiny. One is to ensure at all times that the Decision Support Service engages with disabled people representative organisations. We must ensure that we continue to evolve and do not just hear from the National Disability Authority but widely. I say that because one the things to arise from pre-legislative scrutiny is there is a feeling that public consultation happened at inopportune times such as Christmas. Communication was not in a format that was readily accessible so we just need to ensure that we have that continued sensitivity in that area.

I welcome the ability to register an enduring power of attorney, EPA. However, there is misinformation among families and the community at large regarding the next of kin in terms of who makes decisions, how decisions can be made and who should be consulted in general. It must be ensured, therefore, that a document can be put in place when a person has capacity when he or she anticipates a time when perhaps he or she will not, and that it is honoured. We need a public information campaign to promote this provision and the need for same.

Regarding wards of court, another issue arose during pre-legislative scrutiny, which been mentioned by other groups that I have met. Even possibly today people are being made wards of court. The process continues and, therefore, we must ensure that we include anyone who is in the wards of court system, and process, under the remit of this legislation as quickly as possible. I have heard what has been said about ensuring additional resources and bringing people in as public servants.We need to do that to ensure everyone is under the same system as quickly as possible, while appreciating there will be a period of transition.

I have spent quite a bit of time with a group named Justice for Wards which comprises parents, some of whom were interviewed for a "Prime Time" documentary aired on 9 November 2021. That programme showed us a glimpse of families that include a person who was awarded a large sum by the courts as a result of an accident that occurred, a matter which arose or an action relating to negligence at birth. Those families had money on deposit. The public view is that the family concerned gets that money to provide lifelong support for an individual. It was only through that programme that some people realised that the State controls those funds. At the time and over the years, the State has been responsible for the investment of those moneys. In a small and discrete set of cases, all of the money has been lost. A number of families have been left without those funds. Some of those family members are getting older. Some of the persons concerned are well into adulthood. They needed those funds for their care but do not have them any more. The money has been lost. If the money had been put into a deposit account, it would still be there and accessible. That would be the case if the money had been put into Government bonds. However, that was not the case. Investment decisions were made to which those families were not a party. They had no say in that but are left to pick up the pieces where that money has been lost.

Justice for Wards is seeking meetings with the Ministers for Health and Justice, and with the Minister for Children, Equality, Disability, Integration and Youth, Deputy O'Gorman. Representatives of the organisation have submitted documents. Each time they have been referred to the Decision Support Service. The DSS has nothing to do with this matter. Somewhere within our system of government we need to make a decision to provide support and facilitate a redress mechanism. A court made awards and the State, or an agency on behalf of the State, made imprudent investments that lost the money. Those families need to be supported. A system needs to be put in place to support them. We owe them that duty. They should not have to beg for that redress. In parallel to this discussion, I urge the Minister to consider that point and raise it with the appropriate Cabinet colleagues.

Photo of Annie HoeyAnnie Hoey (Labour)
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I thank the Minister for being here. As a member of the Joint Sub-Committee on Mental Health, I and my committee colleagues, Senator Black and Deputy Wall, have been pushing this particular agenda in respect of advance healthcare directives and voluntary detainment under the Mental Health Act and criminal insanity legislation. The call of everyone on the committee has always been for dignity and respect for the wishes of the patients. A human rights perspective should always be at the heart of mental health care. As the Minister with responsibility for the area, Deputy O'Gorman has been open and diligent, along with his fellow Government members, the Ministers of State, Deputies Butler and Rabbitte.

I note that the Minister said more work is needed on Part 4 of the Mental Health Act. I am sure I am not only speaking on my own behalf when I say that statement is welcome. I am sure members of organisations who are listening are pleased to hear that there are further plans. Does the Minister have a timeline for this? It is a sensitive issue and a lot of work needs to go into it. When is he hoping to have that done? I look forward to working constructively with him in the Seanad, with my Labour Party colleagues in both Houses and in the Joint Sub-Committee on Mental Health.

It would be remiss of me not to take a moment to acknowledge Senator Black, who chairs the joint sub-committee and does incredible work. She has a deft hand and works tirelessly to ensure every voice is heard. It is my privilege to sit on the sub-committee. It is a pleasure to work with the Senator and all my committee colleagues. I also wish to take a moment to acknowledge the work of Mental Health Reform which has tirelessly lobbied members of the sub-committee. It has called for the necessary improvements to mental health services for years. It does incredible work not only in respect of the work we see in its engagement with the sub-committee.

Not everything I have to say is full of pleasantries. I have some concerns regarding this Bill. I will reference the concerns raised with me by the Centre for Disability Law and Policy. Its key issues come from a human rights perspective. As the Minister knows, we cannot, as a nation, talk as often as we do about our human rights record with sincerity if we do not apply a human rights based approach to all sectors of public life. The concerns of the Centre for Disability Law and Policy include the fact that the Bill continues to deny legally binding advanced healthcare directives to people detained under the Mental Health Act and will not abolish the functional tests of mental capacity, which have been confirmed as a violation of human rights by the UN Committee on the Rights of Persons with Disabilities. The centre has also stated the Bill does not guarantee access to justice for people whose decision supporters may be removed from them. It stated that the Bill maintains discrimination, especially against people with intellectual disabilities, in its determination of eligibility for jury service.

The centre also noted that the Bill continues to enshrine a medical model of disability in determining the eligibility of members of the disability committee of IHREC, thereby hampering the work of the committee. It is also of the opinion that the Bill prolongs the archaic and unconstitutional ward of court system. It is also of the opinion that the Bill codifies the inherent jurisdiction of the High Court, which provides wide-ranging powers for judges to impose treatment without consent, to authorise restraint and to place people in institutional settings without any specific legal basis or mandatory review. In the centre's view, this will embed a dangerous parallel system alongside the new assisted decision-making regime.

There is still time to address some of the human rights violations that have been outlined in this amending Bill and its parent Act. Almost all the proposed amendments to solve those violations have been rejected. The sector concerned felt the Bill was published without significant consultation. It does not address the most important issues that affected communities have raised since the 2015 Act was introduced.

We have only just returned from the recess so I do not want to focus too much on the end of the previous term. However, as with many things, there was a feeling that the legislation was rushed through with the inappropriate use of the guillotine. There were not adequate opportunities for engagement. I may as well express the hope now, in September, that we will not be flying through legislation again next July.

Mental Health Reform has also expressed serious concerns regarding the Bill. Leaving aside the Minister's announcement that some Government amendments are to be forthcoming, Mental Health Reform remains seriously concerned about the omission of those detained involuntarily people from the provisions of the historical Bill. Mental Health Reform and I had hoped this discriminatory lacuna would be addressed through Government amendments but we now believe the necessary amendments will not be forthcoming in the relevant Stages as the Bill passes through the Seanad. The necessary amendments are the responsibility of the Minister for Health. It is not only Mental Health Reform that has these concerns. The omission has been widely criticised across the mental health sector, including by the Mental Health Commission.

Mental Health Reform received some communication from the Office of the Taoiseach in June this year assuring it that this was a matter of priority. The communication informed Mental Health Reform that the matter would be raised with the Minister's Department. It has not, however, seen the publication of any further amendments. It must be said that was a hard blow, and not for the first time, to the people who are currently living with the consequences of involuntary detainment orders. The Minister is now telling us that such matters will be dealt with through Government amendments. I ask him to make a conscious effort to work closely on those amendments with the affected persons. I ask him to keep them and the organisations that represent them up to date on his work on this matter. For too long, the position of too many Governments has been to exclude from the process the people with the most intimate understanding of these matters and not to include them in communications about legislation that directly affects them. I trust this Minister, of all Ministers, will do that and bring the people with him on this issue. I am sure he will have the good will and good wishes of the members of the Joint Sub-Committee on Mental Health.

Photo of Frances BlackFrances Black (Independent)
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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.

Photo of Roderic O'GormanRoderic O'Gorman (Dublin West, Green Party)
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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.

Question put and agreed to.

Photo of Mark WallMark Wall (Labour)
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When is it proposed to take Committee Stage?

Photo of Mark WallMark Wall (Labour)
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Is that agreed? Agreed.

Committee Stage ordered for Tuesday, 20 September 2022.

Cuireadh an Seanad ar fionraí ar 2.38 p.m. agus cuireadh tús leis arís ar 4.30 p.m.

Sitting suspended at 2.38 p.m. and resumed at 4.30 p.m.