Assisted Decision-Making (Capacity) Bill 2013: Report and Final Stages

I move amendment No. 3:

In page 10, between lines 24 and 25, to insert the following:” “best interpretation” means the interpretation of the relevant person’s past and present communication (using all forms of communication, including, where relevant, total communication, augmented or alternative communication, and non-verbal communication, such as gestures and actions) that seems most reasonably justified in the circumstances;”.

The Minister of State is extremely welcome to the House. Before I speak to this amendment, I want to congratulate her on her work on the mental health (amendment) Bill which seeks to remove the use of coercion in the application of ECT. I acknowledge that a Bill was published by the former Senator, Dan Boyle, as she knows, and I would particularly like to pay tribute to my cousin John McCarthy, God rest him,I can almost hear him using wonderfully colourful language and including words “about time” but it is great that this Bill will be progressing and well done to the Minister of State for doing that.

In association with my colleague, Senator Katherine Zappone I want to acknowledge the support of NUIG Centre for Disability Law and Policy and Tallaght Trialogue. While most people simply require recognition of their legal capacity and support to express their will and preferences there will still be a small minority of individuals who are not expressing a will and preference in a manner that others can understand. The Bill must establish the lawful response to such circumstances. However, I do not believe that a functional assessment of a mental capacity, and a subsequent denial of legal capacity, is the correct response to these difficult situations. A person in a coma or in a minimally conscious state, for example, will not be communicating their will and preferences to others and may not have made their wishes known in advance through an advanced health care directive or granted a power of attorney to anyone in respect of their relevant decision.In these circumstances decision making assistants, co-decision makers, decision making representatives, attorneys or designated health care representatives may need to make a decision on the relevant person’s behalf in accordance with their best interpretation of his or her will and preferences. While the Bill does require all interveners to respect the person’s will and preferences as part of the guiding principles included in section 8, further reference to the concept of best interpretation of will and preferences is needed for the hard cases in which it is very difficult to tell what a person’s wishes are.

The term “best interpretation” needs to be defined in section 2 of the Bill to guide those in the supportive roles I have outlined. Best interpretation of a relevant person’s will and preferences means taking into account past express preferences, where known, and includes knowledge gained from family and friends and other evidence available. Best interpretation can also be arrived at in seeking to communicate with the person in every possible way, including by using, where appropriate, assisted and augmentative communication, facilitated communication, signs, gestures and total communication, all of which are noted in the regulations and code of practice.

The use of best interpretation will rarely be an easy task. However, the best interest determinations used currently are similarly difficult in these circumstances. The provisions of Article 12 of the UN Convention on the Rights of Persons with Disabilities are merely shifting these difficult decisions from focusing on judgments existing outside the individual to the individual’s own will and preferences. That is why I am trying to insert a definition of best interpretation. We do need to deal with the hard cases, too.

I move amendment No. 6:

In page 15, to delete lines 10 to 36 and substitute the following:“3. (1) Legal capacity may be exercised:
(a) by the relevant person with decision-making supports as needed (including a decision-making assistant) and/or reasonable accommodation; or

(b) by the relevant person and their co-decision maker, acting jointly; or

(c) in a situation of last resort, where all efforts to ascertain the relevant person’s will and preferences have been made and the relevant person’s will and preferences remain not known, legal capacity may be exercised by the person(s) selected to represent the relevant person in exercising the relevant person’s legal capacity (i.e. decision-making representative, attorney, or patient-designated healthcare representative in advance healthcare directive).
(2) Where legal capacity is exercised with the support of a decision-making assistant, codecision-maker, or is being made by a person selected to represent the relevant person (decision-making representative, attorney, or patient-designated healthcare representative), and where the relevant person’s will and preferences are not known, the decision shall be guided by the individual’s best interpretation of the relevant person’s will or preferences and how these are to be applied to a specific decision(s).

(3) In applying subsection (2), decision-making assistants, co-decision-makers and persons selected to represent the relevant person must be able to provide a reasonable account of how this interpretation was arrived at.”.

I propose this amendment to change the definition of “capacity” in the Bill and to move away from a functional test of mental capacity which is used in the current text of the Bill to deny the legal capacity both of adults with disabilities or mental health experiences and of older people. The amendment would replace the definition of “mental capacity” in the Bill with a recognition of the legal capacity which all adults enjoy.

This amendment is based on the explicit recognition of legal capacity and the principle set out by the UN Committee on the Rights of Persons with Disabilities that a functional assessment of mental capacity should never be used to restrict or deny a person’s legal capacity, even in respect of a single decision. The amendment draws on a proposal contained in A Statutory Framework for the Right to Legal Capacity and Supported Decision-Making by the Canadian Association for Community Living, CACL, which was published in 2012. The CACL was a key actor in the reform of Canadian adult guardianship law in the 1990s.It resulted in innovative statutory mechanisms such as co-decision-making and representative decision-making agreements, which influenced the Assisted Decision-Making (Capacity) Bill here.

Functional assessments of mental capacity are now understood to violate human rights. In the terms of the United Nations Committee on the Rights of Persons with Disabilities, functional assessments of mental capacity are “discriminatorily applied to people with disabilities”. In April 2014 the committee stated:

[The] functional approach is flawed for two key reasons. The first is that it is discriminatorily applied to people with disabilities. The second is that it presumes to be able to accurately assess the inner-workings of the human mind and to then deny a core human right – the right to equal recognition before the law – when an individual does not pass the assessment. In all these approaches, a person’s disability and/or decision-making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 does not permit such discriminatory denial of legal capacity, but rather requires that support be provided in the exercise of legal capacity.

Instead of requiring a person who needs support with decision-making to undergo an assessment of his or her mental capacity, these supports should be provided for the person to avail of at his or her own discretion. The availability of supports should also be combined with a parallel process to explore the person’s will and preferences, something we have debated quite a lot on the floor of the House, so that the decision the person wishes to make becomes clear. This approach avoids any need for an assessment of mental capacity.

Section 3 of the Bill makes a person’s ability to enter into different support arrangements contingent on the individual’s mental capacity. This is quite a high standard for an individual to reach and will mean that some people will not be found eligible to make assisted decision-making agreements and co-decision-making agreements, even where this is the form of support the individual and his or her supporters would most likely use.

Under the Bill in its current form, the term “presumption of capacity” is used to try to prevent discriminatory application of functional assessments of mental capacity. However, two international human rights scholars, Oliver Lewis and Michael Bach, stated at a meeting in Belfast in April 2014 that a presumption of mental capacity is meaningless as it does not help to protect the individual’s human rights. They argue that the right to equal recognition before the law, from which the right to legal capacity stems, is a guarantee, not a presumption. In contrast, a presumption can be rebutted if evidence is provided to demonstrate that a certain individual is not worthy of equal recognition before the law.

This amendment is required to ensure Ireland meets its obligations under international human rights law and will, upon ratification, comply with Article 12 of the UN Convention on the Rights of Persons with Disabilities, which we all wish to do. This is why I have tabled the amendment.

Full debate https://www.kildarestreet.com/sendebates/?id=2015-12-15a.222&s=speaker%3A393#g287

Public Health (Alcohol) Bill 2015: Second Stage

I welcome the Minister to the House on this, our penultimate day of term. I heartily welcomed the initiation of the Public Health (Alcohol) Bill. As did Senator Burke, I participated in the hearings of Oireachtas Joint Committee on Health and Children on the scrutiny of the heads of the Bill. We covered the aspects of the Bill and I thank the Minister for taking on many of the committee’s recommendations in what we see today. It does show pre-legislative scrutiny works. The Bill is about reducing alcohol-related harm, improving people’s health and, ultimately, saving children’s lives. From my reading, a children’s rights focus is evident throughout the Bill.

I acknowledge and thank the Alcohol Health Alliance Ireland, which is spearheaded by the Royal College of Physicians of Ireland and Alcohol Action Ireland, for its work and advice to me in this area. In all of our debates on alcohol, even those on reducing the alcohol-related harm which we all agree is extensive and needs tackling, we feel we need to clarify that we are not anti-alcohol. This is because our relationship with alcohol is so twisted into our culture and psyche we do not wish to be portrayed as judgmental and anti-fun. I have been rapporteur for two EU reports on the issue of alcohol-related harm. I have seen the drinks industry in action first-hand so I have no doubt of the pressure it must have put on the Minister. At EU level, I was on the European Economic and Social Committee, which was small, and the industry tried to silence me and discredit me and undermine the work of the NGO for which I worked. Thankfully, the majority of my colleagues on the committee were willing to stand with me and face down the vested interests and defend the public good. This is what we are trying to do with the Bill.

My entry point to the issue is the impact of alcohol-related harm on children. Four in ten children in Ireland are at risk of being adversely affected by alcohol misuse. Four in ten child protection cases are associated with alcohol misuse. It is a significant contributor to the neglect and abuse of children, to domestic and sexual violence and family breakdown. I welcome the support for the Bill and its harm reduction measures from several sectors of the industry in Ireland, including the vintners’ associations, the majority of publicans, the National Off-Licence Association and the C&C Group.

I use the term “drinks industry” but I speak more about the giants who see Ireland as a small pawn in the global drinks industry. The drinks industry speaks about responsible drinking, but the way we drink in Ireland is only responsible for the huge profits the industry makes here every year. As soon as the Minister launched the Bill I could almost hear the smoke machine of the drinks industry spluttering into action and, through its puppet drinkaware.ie, a soon to be launched rebranding of MEAS, talk about the importance of education. We see drinks industry initiatives all the time and the involvement of the drinks industry in public health campaigns despite clear and definitive statements from the World Health Organization that it should have no role in public health initiatives.

Drinkaware.ie is funded by Diageo, Heineken and Irish Distillers. Earlier this year we saw it advertise for an education programme manager to head up an education programme targeting young people, parents and teachers. This is completely inappropriate. If I put it this way, who would entertain the idea of an education programme about the dangers of smoking being designed and delivered by an organisation that is funded by tobacco companies? We cannot let the drinks industry in whatever guise it manifests itself to go into schools and purport to educate our children about the usage of a substance on which its entire profit is made. I hope the Department of Education and Skills takes a firm stance. I have tried to raise this issue several times in the Seanad. There is no safe level of alcohol consumption for children and this is the clear message we must send. We know education informs our behaviour, but it does not influence our behaviour. It is the actions contained in the Bill which will change and reduce alcohol consumption.

I have no doubt that, as has happened in Scotland, the industry will go to court if it feels it can delay or frustrate the implementation of the Bill. In my opinion, this tells us the Minister is on the right track. With regard to sponsorship and sport, the drinks industry spends £800 million a year in the UK on advertising, and research has shown that children there as young as ten are familiar with, and can readily identify, alcohol brands, logos and characters from television. In many instances, recognition was greater for alcohol brands than for non-alcoholic products targeted at children. This tells me a lot. The study also provided new evidence that many children are familiar with the link between alcohol brands and the sports teams and tournaments they sponsor. This is why I welcomed the initiatives the Minister is taking. He knows my position, which is I would love to see a full ban, but I welcome what he is doing in this area to try to reduce the impact on children.

It was very interesting that in the days after the Bill was launched we saw a headline stating it would undermine the rugby World Cup. I cannot see the evidence for this. We have seen the rugby World Cup successfully held in France, which has a ban, and it made a profit. It made me think of FIFA, because it has influenced legislation in Brazil. Brazil has a law whereby alcohol is not sold in stadia, but a change will be made to enshrine the right to sell beer. Surprise, surprise, Budweiser is a big sponsor of FIFA. When the ban on tobacco sponsorship of sport was introduced we were told it would be the end of golf championships, and we would never see again championships such as the Carrolls Irish open. This has been disproved. It can still happen.

With regard to minimum unit pricing, over the past several years the alcohol strength of drinks has increased greatly. The alcohol strength of beers and wine has increased. The pricing the Minister will introduce is within the power of the drinks industry. If it reduces the alcohol strength we will not see price increases. It is simple because it has the power. The introduction of minimum unit pricing will not have an impact on people who drink alcohol in pubs, clubs and restaurants. We are speaking about off sales. People who drink alcohol purchased in supermarkets and consume it within the safe limits will pay 30 cent a week more, which is €15.70 over a full year, with minimum unit pricing. The difficulty is that people drinking cheap high-strength alcohol purchased in supermarkets and other retailers will notice, but we know this is what causes the most deaths, injuries, accidents and incidents. I recommend as reading the University of Sheffield report, which the committee dealt with during its hearings. We know minimum unit pricing works because we have seen it work in Canada.

I welcome what the Minister is doing with labelling. We very much see the importance of people having information. After we discussed it at the committee, we started looking more at labelling on bottles and we can see the misinformation, deliberate or not. It is very difficult to make informed decisions. For the first time, labels on alcohol products will include information which will tell consumers what they are consuming and the impact on their health and weight. More than 90% of Irish adults do not know what is meant by a standard drink. I must look it up and I am involved in the area. A total of 95% of people have said they support the labelling initiatives. The Minister knows I have raised with him the issue of cancer, and we know that alcohol is associated with 900 new cancer cases every year and 500 cancer deaths.

There is an issue with regard to structural separation, which the committee considered and brought to the Minister. I have read the explanatory memorandum which comes with the Bill. The Minister is taking a very pragmatic and easily implemented approach and I commend him for it. We have seen seepage in supermarkets with meal deals which normalise drinking wine every day. I commend the Minister on the pragmatic approach being taken. We will get to tease out each aspect of the report on Committee Stage and I say “Well done” to the Minister in respect of the children’s clothing issue also. We see the seepage on that matter throughout department stores. The Minister has my full support.

Full debate https://www.kildarestreet.com/sendebates/?id=2015-12-17a.93&s=jillian+van+turnhout#g103

Criminal Law (Sexual Offences) Bill 2015: Report and Final Stages

I move amendment No. 2:

In page 6, line 14, to delete “child pornography” and substitute “child sexual abuse material“.

These amendments were also tabled on Committee Stage. As I have already articulated my views on this issue on Committee and Second Stage, I do not intend to be repetitive today. I appreciate that the amendments as drafted technically do not address everything that needs to be addressed, but I am strongly of the view that use of the phrase “child pornography” is abhorrent, and we need to be using it for the term that it is. The word “pornography” in some way implies that there is some consent. In the English dictionary in the mid-nineteenth century, the word was associated with terms such as “taboo” and “secretive,” but it has now become common parlance. For me, the words “child” and “pornography” should never be used together. We are clearly talking about child sexual abuse material relating to children who cannot and would not consent; they are victims of a crime. The child abuse images are documented evidence of a crime in progress, a child being sexually abused.

Similar to the amendments I tabled to the Criminal Law (Rape) (Amendment) Act 1990 in relation to assault, these amendments seek to positively change this legislation. Similar amendments have been accepted. Also, I note that the UK, through an amendment to its Serious Crime Act 2015, has amended its Sexual Offences Act 2003. The term used in the UK for both child prostitution and child pornography is “sexual exploitation of a child.” I want us to name this material for what it is. What I am seeking from the Minister today is a commitment that her Department will seek to rectify this balance.

As I said, I do not propose to reiterate the arguments I put forward on Committee and Second Stages. I believe that in Ireland we should have a system to filter all child abuse material, as happens in the UK and on our mobile phones, as mobile phone providers have signed up to an EU agreement in that regard. We should be automatically doing this work. I commend the work of the Internet Watch Foundation in the UK and hope we could have something similar here. The purpose of these amendments is to name this material for what it is, namely, child sexual abuse material. Interpol and Europol have asked us to call it what it is. They have asked us not to use the term “child pornography,” because it in some way diminishes the act. I ask that the Minister consider my proposals.

I move amendment No. 39:
In page 26, to delete lines 12 to 14 and substitute the following:
“(17)(a) This section and section 19B do not apply where a complainant or witness has expressly waived his or her right to non-disclosure of a relevant record without leave of the court.

(b) No complainant or witness shall be deemed to have expressly waived his or her right to non-disclosure unless he or she has been offered a reasonable opportunity to obtain independent legal advice on the issue of disclosure rights before he or she is asked to sign any document purporting to waive his or her right to non-disclosure of a relevant record without leave of the court.

(18) In addition to the provisions of this section, section 19B shall apply to a relevant record relating to a child.
19B.(1) In this section and in section 19A(18) ‘relevant record relating to a child’ means a relevant record (or part of such record) relating to a sexual offence or sexual offences alleged to have been committed in respect of a person who was, at the time of the offence, under the age of 18.
(2) Without prejudice to the generality of section 19A, the content of a relevant record relating to a child shall not be disclosed to the accused and shall not be admissible as evidence in criminal proceedings save by order of the court and in compliance with the provisions of this section and section 19A.

(3) In determining an application for disclosure of a relevant record relating to a child, subject to the rules of the relevant court and in addition to the criteria set out in section 19A(9), the court shall take the following factors, in particular, into account:
(a) the extent to which the evidence contained in the relevant record relating to a child has substantial probative value;

(b) whether there is other evidence available to the accused that renders it substantially unnecessary to have regard to the relevant record relating to a child; and

(c) whether the public interest in disclosure or the constitutional and other rights of the accused person or both together outweigh the potential harm to the complainant.”.”.

I wish to raise an issue on third-party disclosures and I want to be clear from the outset that I welcome section 34. In June 2013, I tabled amendments to the Courts and Civil Law (Miscellaneous Provisions) Bill concerning the disclosure of third-party records, namely, the counselling and therapy notes of child complainants in sexual offence trials. At that time, I expressed my deep concern regarding the issue of the court ordered disclosure of complainants’ confidential records by medical, psychiatric or therapeutic personnel, be the complainant an adult or a child, in the absence of any legislative guidelines. I am delighted to see the issue being addressed in the Bill and I support the approach taken to provide standards and guidance to the courts in determining whether to grant an order for the disclosure of a record in dispute.

I agree that an adequate balance has been struck between an adult complainant’s right to privacy and the right of the accused person to procedural fairness. However, upon further reflection in this regard, I have tabled an additional amendment – amendment No. 40 – which includes the same changes to sections 34(17)(a) and (b) as proposed in amendment No. 39, whereby the provisions of a new section 19A of the Act of 1992 would not apply where complainants or witnesses expressly waive their right to disclosure of a relevant record without leave of the court. I am sure the Minister fully acknowledges and sympathises with the vulnerability of a complainant or a witness during this time. My concern is that the right of a complainant or witness to advice or representation by the Legal Aid Board only kicks in where a decision has been made to prosecute. However, the point at which a complainant or witness is invited to waive his or her rights concerning disclosure often arises at a Garda station when a formal witness statement has been given. I suspect this happens without any real understanding of the implications should the matter proceed to trial. The amendment provides that any express waiver be made subject to independent legal advice or the offer of such advice. I know that the board, with its ample experience on the ground, is very supportive of the safeguard.
The purpose of the new section 19B is to act as an additional layer of protection for child complainants or witnesses in sexual offence trials who are uniquely vulnerable by virtue of their age and the heinousness of the abuse perpetrated against them. To understand the difficulty thrown up by an increasing number of blanket requests from the Office of the Director of Public Prosecutions for disclosure of details of children’s private and confidential counselling sessions, it is important to understand that the therapeutic process happens in two distinct phases. The first phase is the compilation of an assessment report which records the baseline account – the who, what, where and when – of the abuse the child is alleging. It is clearly material evidence relevant to a criminal investigation in a trial and is rightly subject to disclosure.

The second phase is the therapy. The therapy notes are concerned with documenting the child’s feelings, thoughts, hopes, fears and dreams. If any information arises in the course of the therapy phase which substantively alters the account given in the assessment report, the practitioner will update the assessment report accordingly and make it available to the relevant parties. In effect, any information or material evidence relevant to a criminal investigation or trial for child sexual abuse is often disclosed as a matter of course. The remaining information contained in counselling records and therapeutic notes has no material relevance but it reflects the heart and soul of a damaged child and should not be subject to disclosure. There is a strongly held view on the part of many practitioners who specialise in assessment and therapy services for children who have been sexually abused that therapy notes should be privileged outright on the basis they are neither material evidence nor information relevant to legal proceedings. When one examines the purpose of therapy for children who have been sexually abused, what the therapy involves and, moreover, the arrangements the services have in place to manage the process, the rationale for affording such privilege is very strong. Therapy as a whole is not concerned with making judgments or assessing the veracity of what is shared in sessions. Rather, it is simply a particular type of human engagement where the exploration of a child’s thoughts and feelings at a particular point in time are facilitated. Therapy notes, in turn, are context specific. They derive out of a therapeutic encounter and as such are concerned with documenting feelings, thoughts, hopes, fears and dreams. They are not absolute facts. They are not material evidence.

Ultimately, the aim of therapy is to assist a child in getting back to a life that is not dominated by the sexual abuse he or she experienced and to equip the child to build trusting relationships. In doing so, the therapist will address patterns of behaviour or responses which have become unhelpful, burdensome or troubling in the child’s living experience. Therapy can also draw attention to healthy responses and coping strategies shown by the child in and out of sessions. This can involve the use of fantasy and therapeutic play scenarios, especially for younger children where the child can try out different roles in order to make sense of the abuse experienced. However helpful the process may be to the child, therapists are becoming increasingly concerned about how notes describing such a scene might be interpreted in a legal arena and taken out of context.

Trust in the therapeutic relationship and the creation of a safe space are paramount to the effectiveness and success of the therapeutic process. It is difficult to envisage how this can be achieved if the privacy and confidentiality of these therapy sessions are not sacrosanct. I argue that the effectiveness and success of the therapeutic process is an important part of the public interest consideration in restoring the child’s well-being and ability to function in society. The amendment is an added layer of protection to reflect the unique vulnerability of the child and the nature and type of information which comes through in the therapy process, as distinct from the material facts. Any additional relevant information is added as a matter of course to the assessment report.

I am acutely aware of the need to strike the proper and appropriate balance between the right of the accused to procedural fairness in a child sexual abuse case, the right of a child witness to privacy, as well as the right not to be revictimised or unduly traumatised by the criminal justice system, and the public interest. The amendment is wholly compatible with Irish constitutional law, Ireland’s obligations under the European Convention on Human Rights and the best interests of the child in the context of providing in law that the disclosure of sexual assault counselling communications of children will only be granted by a trial court where the evidence sought has substantive probative value, where there is no other evidence which could prove the disputed facts and where the public interest in disclosure outweighs the potential harm to the child.As I stated, I would prefer to make these notes privileged and sacrosanct, but what I have done in the amendment in strive to strike the balance that needs to be there in law. I hope the Minister would look favourably on these amendments.

Full debate https://www.kildarestreet.com/sendebates/?id=2016-01-21a.178&s=jillian+van+turnhout#g190

The Lancet

In July 2021, Jillian co-authored an article in the world-renowned medical journal “The Lancet”