Assisted Decision Making (Capacity) Bill 2013 passes final stages in the Seanad
Posted on December 15, 2015
Great to see the Assisted Decision Making Bill pass final stage in the Seanad. Here is a contribution I made at Second Stage.
Tuesday, 10 November 2015
Assisted Decision-Making (Capacity) Bill 2013: Second Stage
Senator Ivana Bacik: I will try to follow Senator Zappone's example. I welcome the Minister of State to the House. I also welcome those in the Public Gallery who are here for this debate. I recognise many of them as they have appeared before us in the Joint Committee on Justice, Defence and Equality and I acknowledge their long involvement in seeking reform in this area. I also acknowledge the Minister of State's immense contribution to the development of this legislation and her strong personal commitment to this area to ensure that we have a modern statutory framework in place for the support of vulnerable adults. I use the language that the Law Reform Commission used in its report in 2006 which set out a blueprint for the sort of legislation that we are only now enacting. We have all acknowledged how long awaited and hugely important this Bill is. I am glad it has had such a general welcome, both in the other House and in this House.
Senator Conway said that as we have been speaking, the Minister for Justice and Equality and the Tánaiste have been signing the Marriage Bill 2015 commencement order. I hope it will not be long before the commencement order is signed for this Bill too because it is long overdue. It will provide for an up-to-date framework to support decision making by adults where capacity has become affected or impaired and it will replace our archaic laws dating back to the 19th century.
The legislation has had a long genesis and I have already mentioned the Law Reform Commission report of 2006. I looked again at some of its recommendations and I noted that, between the date of the report and the publication of the scheme of a Bill in 2011, there had been developments and the understanding of best practice had shifted, a point the commission itself acknowledges. The Law Reform Commission recommended that the law on capacity promoted capacity by having an emphasis that was enabling rather than restrictive in nature, thus meeting the requirements of constitutional and human rights law, and this is a very important general overarching principle. In 2011, the scheme of what was then called the mental capacity bill, on which the Joint Committee on Justice, Defence and Equality ran extensive hearings in February 2012, was published. We received more than 70 submissions and held a number of hearings. In our report we made a number of recommendations for change, most of which have been addressed. The Bill which was published in July 2013 and went again to the committee was fundamentally different and even the current Bill has changed and been vastly improved due to the amendments made in the Dáil. This has been an evolving document and it has evolved in line with our changed understanding of best practice and our international obligations.
Some Members said the Bill needed to be passed in order for us to ratify the UN Convention on the Rights of Persons with Disabilities. In our report we noted that Ireland was one of the first countries to sign the UN Convention but has not been in a position to ratify because of the fact that our legislation was so out of date in this area. There have been big changes to the Bill as the scheme has progressed and a number of organisations have worked particularly closely in the development of the Bill, including over 15 NGOs representing persons with disabilities, older persons and mental health service users whose engagement I know the Minister found useful. Anyone who proposes changes at this stage is clearly seeking to improve the Bill but we must recognise the need to get the Bill passed, preferably before the end of this year, so that we can ratify the Convention and, more important, put in place an effective and respectful system of supports for adults who need them so badly.
I will mention some key points to welcome where we have seen real changes in the evolution of the Bill. First, there is a change in language. I mentioned the scheme of the mental capacity bill and I am really glad we have moved away from such language and from the dreadful language of the Lunacy Regulation Act 1871, which will continue to govern this area until this Bill is passed. I also welcome the fact that the Minister replaced the office of public guardian, which had a paternalistic approach, with a decision support service. The old head 3 of the scheme in 2011 referred to the best interest test but we have moved significantly from that in terms of both language and substance.
I take Senator Zappone's points on section 3 on the determination or construction of a person's capacity. I listened with great interest and was reminded that, in 2012, we recommended that the Bill be about legal rather than mental capacity. There has been a real shift to that principle in the language of the Bill and reading section 3 together with section 8, I see that the Bill is now much more respectful of the autonomy of individuals and has moved away from the paternalistic best interest test. We might tease out some of the points relating to the definition of capacity on Committee Stage.
The Bill is hugely welcome in the way it moves away from the one-size-fits-all approach. It puts in place three layers of options in accordance with differences of capacity and again moves away from the dated model, the inflexible approach with which we have been stuck and will remain stuck until the Bill is passed. Again, this is in line with the recommendations of the Joint Committee. We recommended that a human rights based approach be put in place that would recognise that there were different levels of decision-making capacity and that the current all or nothing approach in wardship meant that virtually all the usual civil rights were taken away. This is not appropriate for those who are dealt with in that system.
We also called for changes to the enduring power of attorney and that has been done in Part 7, which has been extensively amended. The changes in wardship in Part 6 are also welcome. Serious problems remain with wardship but I will not go into them because everyone is aware of them. The new Part 8 on advance health care directives is also very welcome. Some concerns have been raised on this and I am grateful of Dr. Eilionóir Flynn from the centre for disability law and policy at NUI Galway and Fiona Morrissey and others who have raised the issue of the discriminatory application of advance health care directives in section 68 to persons involuntarily detained under the Mental Health Act. We might look at this matter on Committee Stage. I welcome the fact that the Minister of State has said there will be amendments on Committee Stage.
The provisions in section 68(6) in Part 8, relating to when a directive maker - someone who is making an advance health care directive - lacks capacity and is pregnant are troubling. I do not blame the Bill for that. They are troubling because they relate to the eighth amendment of the Constitution and are to be understood in the context of the provision in section 68 which imposes a requirement on the court to look at the impact of the refusal of treatment on the unborn. We are all conscious of the dreadful case last Christmas which concerned exactly this, namely, a pregnant woman who had lost capacity. It is something about which we should be concerned and shows how the effect of the eighth amendment is felt, even in this area. I have always called for repeal of the eighth amendment and this gives us another reason.
Senator Martin Conway: Hear, hear. Well said.
Senator Ivana Bacik: We should not have to say this about this legislation, which is otherwise reforming and welcome.
Members have raised the issue of legal aid and the need to ensure that those who make applications for co-decision making process under Part 4 have adequate entitlement to legal aid and that is something we can also tease out. Senator Zappone spoke about the retention of mental capacity assessment.
On the overall philosophy of the Bill, a hugely important principle is that the option chosen from the three decision-making support options should be the least intrusive possible. This deserves great support and acknowledgement. The safeguards put in place were the subject of an amendment in the Dáil and the Minister said there might be others. One example of this is the provision whereby the decision support service will supervise co-decision makers, which is hugely welcome and will add to the practical positive impact of the Bill.
It is very important that we see this Bill through and do not delay any further on it while raising the important points we need to raise. We have learnt a great deal during the development of the Bill and we need to make it a best practice model. We are well on the way to doing that but section 129, which requires the Minister to carry out a review of the provisions five years after the Bill's enactment, is particularly welcome and gives us confidence that the Bill can only be improved in the future.