Áine Flynn: Three years after ratifying disability convention, Ireland must commence capacity legislation so people can live full lives

24 Mar, 2021


Three years ago this month, and 11 years after it had been an early signatory, Ireland finally ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD). The CRPD is an international human rights treaty and its purpose is to ensure the full and equal enjoyment of human rights and fundamental freedoms by all persons with disabilities and to promote respect for their inherent dignity.

Disability is broadly defined in the CRPD to include persons with long-term physical, mental, intellectual or sensory impairments, which ‘in interaction with various barriers’ may hinder their full participation in society on an equal basis with all others. This social model views persons not as inherently disabled but rather experiencing disability as a result of environmental or societal factors that fail to accommodate their needs.

The ratification of the CRPD has necessitated a comprehensive review and amendment of legislation and public policy relating to matters as diverse as the protection of liberty in care settings, access by persons with disabilities to certain public sector employments, accessibility of the built environment and transport, jury service, and the delivery of voting rights and eligibility criteria for company directors.

The State had earlier indicated its intention to ratify the ‘Optional Protocol’ at the same time as ratifying the CRPD. The protocol allows for complaints to be submitted directly to the Committee on the Rights of Persons with Disabilities – a UN body of independent experts which monitors implementation of the CRPD by countries that have become party to it - alleging the violation of CRPD rights, after domestic remedies have been exhausted. Instead the ratification of the protocol has been deferred pending the completion of the legislative review and update.

A key piece of legislation, essential to compliance with the CRPD, is the Assisted Decision-Making (Capacity) Act of 2015. The 2015 Act was signed into law at the end of 2015 but for the most part it has not yet been commenced. It is rights-based legislation which reforms how we interact with and support all adults who have difficulties with their decision-making capacity. It has been acknowledged that full commencement of the 2015 Act is required if Ireland is to deliver on the guarantees contained in the CRPD relating to equal recognition before the law, access to justice, and the right to liberty and security of the person.

The primary focus and intent of the 2015 Act is to support all persons to make their own decisions as far as possible.

Key reforms include the abolition of the wards of court system for adults under the Lunacy Regulation (Ireland) Act of 1871. Wardship, under which a person may be declared to be ‘of unsound mind’ and incapable of managing his or her affairs has long been recognised as a blunt instrument and it will be replaced by a new graduated framework of supports aligned to a person’s need.

The Act introduces a statutory functional (time-specific and issue-specific) assessment of capacity and guiding principles which emphasise dignity, autonomy, bodily integrity and the centrality of a person’s will and preferences as opposed to a ‘best interests’ standard. There are enhanced tools to allow all of us to plan ahead by way of enduring powers of attorney and advance healthcare directives. The Act also establishes the Decision Support Service (DSS), with duties to promote awareness of and confidence in the new statutory framework, to regulate and supervise the support arrangements and to promote organisational change.

The Department of Disability, Children, Equality, Disability, Integration and Youth (DCEDIY) is conducting a public consultation on its draft initial report on Ireland’s compliance with the CRPD with responses due by April 9. The draft report states that the State’s approach to compliance is one of progressive realisation, and sets out current implementation measures, short- and medium-term goals. After the finalised report is submitted to the UN Committee on the Rights of Persons with Disabilities, Ireland will come before a public examination by the same committee, which will then make observations and recommendations on the delivery of our CRPD implementation programme.

The full commencement of the Assisted Decision-Making (Capacity) Act is at last in sight, after a much longer lead time than anyone, including this writer, would have hoped or expected. Following its approval last year of a timebound, costed plan for the establishment of the DSS, the Department of Justice publicly stated its support for commencement of the Act in mid-2022, at around the same time that Ireland is likely to appear before the aforementioned UN committee. Responsibility for the Act and the DSS passed to the DCEDIY in October 2020. The Minister for Disability, Anne Rabbitte, has identified commencement of the Act as priority and it is also a commitment in the current programme for government.

While the DSS establishment project is now well under way, it is important to say that the readiness of the DSS is not the only precondition to commencement of the 2015 Act. The Act will have impacts on other stakeholders to include the Courts Service, legal and financial services providers, An Garda Síochána, disability services, and those working right across health and social care. There is much preparatory work to be done in these sectors.

Commentators have spoken of the 2015 Act as a major cultural shift, but it is encouraging to see the increasing adoption of its core values in other policy and legislation. It is notable that the statutory instrument to provide for the COVID-19 vaccination programme contains a requirement to ascertain the will and preferences of a person who cannot supply consent.

In 2018, representative groups expressed a cautious welcome for the ratification of the CRPD together with the plea that its aspirations must be given meaningful practical effect. It is hoped that the full commencement of the Assisted Decision-Making (Capacity) Act 2015 will be a significant step towards securing that reality.

This article by Áine Flynn first appeared in The Irish Examiner on March 22nd, 2021.

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