CLM asks the Government how it intends to implement the United Nations Convention on the Rights of Persons with Disabilities
The United Nations Convention on the Rights of Persons with Disabilities was formally ratified by Ireland on 20th March 2018. This hugely welcome development heralds a positive obligation to tackle the barriers that prevent people with intellectual disabilities from accessing justice in a meaningful way. The Convention will come into force in Ireland on 19th April 2019.
Articles 5 and 12 of the Convention recognise and guarantee the equal rights of persons with disabilities before the law and their entitlement to the protection and benefit of the law and to equal and effective legal protection against discrimination on all grounds.
Very importantly, Article 13 provides that:
1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.
2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.
Community Law & Mediation wrote to the Department of Justice and Equality and to the Courts Service to find out what plans they have in place to ensure compliance with this hugely important Convention, with particular reference to people with intellectual disabilities.
In response, the Department of Justice and Equality noted the following:
The Disability (Miscellaneous Provisions) Bill 2016 is currently awaiting Committee Stage in Dáil Eíreann. Section 1 on the Bill provides for amendment of the Juries Act 1976 so that a person who is deaf shall not be eligible for jury service by reason only of his or her requiring the services of a sign language interpreter. The existing prohibition on a person who has a mental health illness or disability, and is receiving medical treatment or is a resident in a hospital or similar institution, from serving as a juror is replaced with a functional capacity test which will provide that a person must have the mental and intellectual capacity to serve as a juror.
Section 2 amends the Electoral Act 1992 to repeal the prohibition on a person of ‘unsound mind’ from standing for election to the Dáil (and thereby removing the disqualifications for membership of the Seanad and for election to the European Parliament also).
At its meeting on 5 December 2017, the Government approved the publication of draft legislative provisions will be deprivation of liberty safeguards for public consultation. These provisions will be contained in a standalone Bill to be sponsored by the Minister OF health and the Minister of State for Disability issues. This public consultation formally closed on 9 March 2018. However, at the request of a number of organisations, submissions are being accepted up to mid- April.
The Government has approved both Bills to receive priority drafting within the Office of the Parliamentary Counsel.
The Assisted Decision- Making (Capacity) Act 2015 also needs to be commenced and this requires the establishment of a Decision Support Service (DSS) under the Mental Health Commission. The Assisted Decision – Making (Capacity) Act 2015 provides a modern statutory framework to support decision-making by adults with capacity difficulties. The Act was signed into law on 30 December 2015.
New administrative processes and support measures, including the setting up of the Decision Support Service within the Mental Health Commission (a body under the auspices of the Department of Health), must be out in place before the substantive provisions of the Act can be commenced. A high- level Steering Group comprised of senior officials from the Department of Justice and Equality, the Department of Health, the Mental Health Commission and the Courts Service, together with the Director of the Decision Support Service, is overseeing the establishment and commissioning of the Decision Support Service (DSS) and this work is ongoing.
The Assisted Decision – Making (Capacity) Act 2015 (Commencement of Certain Provisions) Order 2016 (S.I. No 515 of 2016), brought some provisions of Part 1 (Preliminary and General) and Part 9 (Director of the Decision Support Service) of the Act into operation on 17 October 2016. These provisions were brought into operation in order to progress the setting up of the DSS and to enable the process of recruitment of the Director of the DSS to begin. The recruitment and appointment of the Director of the DSS, and the appointment of DSS staff, is a matter for the Mental Health Commission with the approval of the Minister for Health. Ms Áine Flynn was appointed Director of the Decision Support Service on 2 October 2017.
Preparations are being made, by the Steering Group, to allow for further commencement orders for the provisions of the 2015 Act to be made when the DSS is ready to roll out the new decision making support options. The Director is also working in a very determined way to get the necessary staff resources , processes, IT system, expert panels, codes of practice and regulations in place in order that the Decision Support Service can be up and running as quickly as possible. The 2018 Budget provides for an allocation of €3 million in the Justice and Equality Vote for the establishment of the Decision Support Service.
Finally, The Government fully recognised the utility of the Optional Protocol to the Convention in providing a high degree of accountability. The intention is that the Optional Protocol will be ratified following the completion of the first reporting cycle under the Convention.
We await a response from the Courts Service.
While these measures are welcome, we are concerned that the significant barriers for people with intellectual disabilities. Our experience in advocating on behalf of and representing people with intellectual disabilities shows that the adversarial nature of much of our justice system creates an immediate barrier for people with intellectual disabilities. As it currently stands, the system is not designed to cater for people with particular vulnerabilities and often quite complex needs.
Many complainants and witnesses with intellectual disabilities have difficulties with adversarial forms of communication, meaning that cross-examination can be distressing for them. The adversarial process can act as a barrier, given its emphasis on testing the evidence through robust questioning, which may be perceived by a more vulnerable witness as confrontational and overwhelming. This can be particularly difficult for those, for example, who have difficulty with long or short term memory recall, with communicating effectively and with cognitive overload. Relatively simple matters such as the taking of an oath prior to giving oral testimony can be fraught with difficulty. Striking a balance between the needs of such individuals and the fundamental elements of fair procedure and due process is central to the implementation of the Convention in Ireland.
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