Matt Shanahan backs ending wardship, urges wider consultation
Matt Shanahan spoke on 1 Jun 2022 about the Assisted Decision-Making Capacity amendment bill, praising its aim to abolish wardship and introduce a functional assessment system. He welcomed the bill's tiered decision-support model and employment target but urged more engagement with disability groups.
Overview of the bill
The speech outlined the bill's purpose to amend the Assisted Decision-Making Capacity Act of 2015 and to bring an end to wardship in Ireland. Shanahan described the move away from wardship as "most welcome" and noted the replacement with a functional approach that presumes capacity unless rebutted.
Decision-support service and powers
He described the proposed Decision Support Service (DSS) as a central element that will oversee tiered supports, draw up administrative procedures, handle informal complaints and carry reporting functions. Shanahan acknowledged the substantial statutory powers proposed for the DSS and said he presumed ministers had taken steps to safeguard and operationalise those powers.
Enduring power of eternity status and access
The speech welcomed the two-tier system for creating enduring power of eternity status, where a person may register their wish while competent and the DSS can be contacted to enact the arrangement if capacity is lost. Shanahan asked whether this mechanism would extend beyond people with disabilities to the wider public, seeking clarity on access and safeguards.
Employment target and progressive aims
Shanahan welcomed the proposal to increase public-sector employment of people with disabilities to 6%, calling it a progressive measure. He said the bill aims to improve equality and allow people experiencing diminished capacity to participate more fully and direct their own lives with dignity.
Concerns about consultation and next steps
While broadly supportive, he urged ministers to engage further with disability representative groups to understand their concerns before amendments are finalised. Shanahan stressed that listening to those affected should improve the legislation and avoid unintended consequences from poorly drafted law.
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The Assisted Decision-Making Capacity amendment bill. Ministers, this is a complex bill designed to amend the Assisted Decision-Making Capacity Act of 2015. Essentially what the bill proposes is to bring an end to wardship in Ireland which is most welcome. I think many of us would be aware of the historic nature and maybe even contemporary nature of wards of court where young adults were incarcerated in institutions, oftentimes for the large duration of their life without any assessment of their own thoughts or feelings or their ability to function independently or act independently in wider society. So I think anything that sets that aside is to be welcomed. The bill also appears to propose replacing that system with an assessment system based on functional approach. That being where capacity is presumed and where the burden of proof legally rests on rebutting that assumption and I suppose that that is something that is something that is going to have to be teased out through the course. I note from your opening statement, Ministers, that you hope this legislation will give people experiencing diminished capacity the opportunity to participate more equally and meaningfully in our society and to have greater power to direct their own lives in an independent and dignified manner. I think it would be very hard for any of us to say that we would not be supportive of legislation that can deliver that. But in order to achieve this, you are proposing a series of tiered decision-making supports that will assist arriving at best outcomes for the clients involved. And indeed, you mentioned the clear obligation and earnest clear obligation under the United Nations Convention on the Rights of Persons with Disabilities and that we must abolish wardship and enacting this bill will allow for this decision support service to operate and make the Act operational. So, it is this DSS that will oversee the different tiers of support under the Act and you say it is their responsibility to make them available to those who need them and indeed you propose to give them a supervisory and safeguarding role in relation to such arrangements. And it seems that this DSS will have significant powers with this bill enactment. It will be allowed to draw up its own administrative procedures and will involve informal complaints procedures without requirements to the courts. And in addition, it will have a reporting function also. So, these are heavy statutory provisions. I presume, Minister, and I know that you have gone to extreme lengths to ensure that these will also be safeguarded and operationalised. The bill also proposes to deliver a new system for creating enduring power of eternity status. And you are proposing, as I said, a two-tier system where a person may register their wish to create a power of attorney with the DSS while they have full use of their mental faculties. If and when an individual loses mental capacity, their legal representatives will be able to contact the DSS to enact such power of eternity status, subject to the usual and medical legal safeguards. And this is to be welcomed. I just wonder, Minister, maybe you could answer in your summing up, does this extend also to people who are not essentially disabled? Is this going to be an act that could be provisioned for the wider public at large? I also welcome the additional effort to improve employee participation in the public sector by increasing to 6% public sector employment of people with disabilities. This is a very progressive move and I certainly welcome that. So, on balance, Ministers, I believe the Government are trying to deliver progressive legislation here. But I have to add my voice of concerns to those that have been tabled here already. It has been said and it largely relates to the amount of communication and interaction with disability groups to understand their fears, their sensitivities and to ensure that the working schemes proposed meet with their approval. I would urge again, Ministers, that in advance of amendments being tabled to this legislation, that you would reach out to such representative groupings and bodies and deal with their concerns before any legislation is passed or enacted. The whole purpose of this legislation, as you have outlined, is to significantly improve the equality situation for those with some degree of disability. How can it hurt to listen and deal with these groups' concerns, Ministers? It could and should make for better legislation. Nobody wishes in this House to be dealing with the effects of bad law and we have had many examples of that in this country over the decades. So, as I said, I acknowledge what you are trying to achieve here with this bill and it is to be welcomed, as I said. But I said, my only concerns, again, relate that for those whom this progressive legislation is being proposed, that they feel they have been fully engaged regarding it. Good. Well, let's go. I will say, well, let's go. I will say, well, I will say a lot, but let's go. Oh, my God. I will say a lot, please. Let's go. Thank you. I will say a lot. I will say a lot. I will say something and I will say, I will say a lot, then, but we don't understand. What is the concept of a simple, but I am a great critic. I will say a lot, the second, but I will say a lot. I will say a lot, but I will say that it is a little bit smaller.
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