Speech of Colm Keaveney TD, Dáil debate on Assisted Decision Making Bill 2013

Published on: 11 December 2013

I am grateful for the opportunity to speak on this Bill and I welcome it as an important step in the state’s progress towards ratifying the United Nations Convention on Rights of Persons with Disabilities.

It bears some relation to the earlier legislation drafted by Dermot Ahern when he was Minister for Justice.

That Bill was based, in part, on the UK’s then legislation in the area. The Bill now before us has clearly benefited from some of the subsequent British experience.

There are over 600,000 people in Ireland, not far off one in five of the population of the state, who have some form of a disability.

There over 57,000 persons within Ireland who have an intellectual disability.

Historically, such persons have not been treated with the dignity and respect owed to all persons simply by virtue of their humanity.

Ireland has a poor record in this respect, as it does in the area of mental health.

Thankfully, the last 15 or so years has seen significant progress in addressing these historic failings with the Mental Health Acts of 2001 and 2008 standing as a significant milestones in that progress.

This Bill is yet another significant change, updating as it does a legislative framework that dates from the Lunacy Act of 1871.

It touches on many aspects that go to the heart of what should be the essence of any state calling itself a republic; equality before the law, liberty of the individual as a default position protected by law, and the autonomy of citizens in making decisions concerning their own lives, including decisions that others might judge unwise or imprudent.

The law both reflects but also helps to shape societal attitudes. In the case of this Bill should help to alter our attitudes towards those with intellectual disabilities.

It signals a significant move away from the paternalistic approach of the current legislative framework towards one that respects the autonomy and will of the individual.

The move from the current standard of ‘best interests’ towards one that respects the ‘will and preference’ of the individual is welcome in that regard, as is the move from substitute decision making to one of assisted or co-operative decision making.

In general though, the Government needs to signal, through its choices on resources allocation as well as policy and legislation, that the disability sector should not be viewed as a charitable one.

This attitude needs to change.

Instead, all policy needs to be informed by the attitude that all citizens should be enabled to be given a fair opportunity to live their lives to the fullest potential and to play a full part in the life of their communities.

Resources should not be allocated on a charitable basis but one that recognises that persons with disabilities are entitled to these supports and respect as a basic right, the same as any other citizen, and as an imperative of social justice.

As my colleague Deputy Niall Collins stated last week, we will be seeking to address several concerns with this Bill at Committee Stage.

As I have mentioned this Bill uses different language from other legislation in this area, including the Mental Health Act of 2008.

How it will interface with such legislation is a concern and amendments to earlier legislation may well be required before this Bill comes into operation.

Eilionoir Flynn from NUIG has raised concerns in relation to Section 3.

This defines mental capacity in a way that suggests that is a person is found to lack mental capacity then it will result in the loss of their legal capacity to make decisions. 

Article 12 of the UN Convention makes plain that persons with disabilities must enjoy legal capacity on an equal basis with others in all aspects of life.

Dr Flynn believes that this may be problematic from a human rights perspective.

There are some provisions of the Bill that while not intended to do so may result in the continuance of the current substitute decision-making regime.

Stronger protections will be needed to ensure that court appointed co-decision makers or decision-making representatives take sufficient and proper account of the will and preference of the individual and not based on what is considered the ‘best interest’ of the individual from another’s point of view.

The Bill provides for a broad range of powers to informal decision makers but does not provide for similar safeguards as for other the decision makers contained in the Bill.

This powers need to be restricted and a duty to explore assisted or co-operative decision making.

This Bill continues to leave unresolved an issue that currently exists under the Mental Health Act.

There are still no adequate safeguards for persons who are detained against their will.

There has been case law on this form the European Court of Human rights that now demands that changes be made in our own legislation.

Not the least of which changes must be the ability to challenge their deprivation of liberty.

Section 106 0f the Bill restricts the application of this Bill from a wide range of areas, including marriage and voting among others.

This is again in conflict with the UN Convention which states that persons must enjoy legal capacity in all areas of life.

I have already referred to a change in attitude that this Bill signals.

In that regard, could I ask the minister to reconsider the name of the Office of Public Guardian, suggestive as it is of the older paternalistic view that we are working to move away from.

Outside of any concerns with the content of the legislation, but as essential to its operation as any provision within it, is the question of funding.

Several aspects of this Bill, from the issue of legal aid needed by those wishing to access its provisions to the Office of Public Guardian will require solid and significant commitments with regard to funding from the Government.

There will be little point in advancing such legislation only to find that its provisions remain out of reach or insufficiently enforced to deliver on the promise it contains.

Sadly, this Government has shown little commitment to protect funding to the disability sector with many of its budgetary measures targeted at that sector. 

These measures have included a savage 20% cut to the Respite Care Grant, increases in prescription charges, and the reassessment of entitlement to medical cards that has affected many persons with a disability.

These have been the cause of significant anxiety and should be reversed if we are to live up to the ideals of a republic.

The true testament of the government’s commitment to disability sector will be to reverse these cuts.

The true test of their commitment to the provisions of this Bill will be the funding that they commit to it. 

It is perhaps all too easy to write off these criticisms as party political but they are sincerely held by myself.

Indeed, when it comes to legislation dealing with the fundamental rights of our citizens I believe that partisan politics should be put to one side.

To that end I would hope that the Minister will be open to constructive amendments tabled by opposition deputies.

Speaking on behalf of Fianna Fáil, I can say that we will be putting forward amendments informed by contributions from stakeholder groups and reflecting recent judgements by the European Courts of Human Rights.

Once again, I welcome this Bill and look forward to playing as positive a role as possible in its enactment. 

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