The ICCL welcomes the State’s long-overdue effort to establish legal safeguards to protect the rights of individuals who are or may be deprived of their liberty in care settings. Ireland has a long history of failing to prevent widespread arbitrary detention and mistreatment of people who depend on others and/or the State for care. The past few decades have been marked by repeated investigations into, and political and public expressions of alarm about, the State’s practice of supporting and allowing the care of adults and children in systems that are inadequately regulated, and in which there are weak or non-existent mechanisms for respecting individual rights and ensuring that complaints are heard and responded to. Successive governments have been pleaded with to provide sufficient alternatives to institutional care so that people are enabled to live independently and included in the community.
The Department of Health’s preliminary draft Heads of Bill on deprivation of liberty, which are intended to form Part 13 of the Assisted Decision-Making (Capacity) Act 2015, are unfortunately seriously inadequate to ensure adequate protection from arbitrary detention and mistreatment in care settings. The draft Heads of Bill fail to provide a number of safeguards which are necessary in order to comply with Ireland’s obligations under numerous human rights instruments, including the Irish Constitution, the European Convention on Human Rights (ECHR), the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and other international treaties. In particular:
- The draft Heads of Bill do not cover numerous care settings where people are routinely deprived of their liberty, including hospitals, community-based settings and the home.
- In applying only to people deemed to lack capacity to make a decision about where to live, the draft Heads of Bill offer no protection from arbitrary detention to people who are deemed capable of making care-related decisions.
- There are wholesale exemptions from the requirement for deprivations of liberty to be authorised by law, including for wards of court and where the person in charge of an institution ‘reasonably believes’ that a person’s capacity is ‘fluctuating’ or that the person will die within a ‘short period’.
- The grounds for triggering an application to court to authorise a deprivation of liberty do not comply fully with the Assisted Decision-Making (Capacity) Act 2015 or the CRPD, and therefore allow for arbitrary detention.
- There is no statutory right to the alternatives to institutional care or restraint which are required in order to avoid unnecessary (and therefore arbitrary) deprivations of liberty. These alternatives include home care, community-based services and psychology services.
- There are no requirements in the draft legislation for care providers to obtain informed consent (with supported decision-making where necessary) to all restricting forms of care, which is a necessary safeguard to prevent arbitrary detention of all people in the care context.
- There is no statutory right to the independent advocacy services which are necessary to ensure that the procedures intended to prevent arbitrary detention are in fact accessible to people who require care, and effective.
- Despite signing the instrument, Ireland still has not ratified the Optional Protocol to the United Nations Convention against Torture (OPCAT), which requires states to establish a National Preventive Mechanism to inspect and monitor all places of deprivation of liberty in order to prevent arbitrary detention or torture or ill-treatment.
The remainder of this submission supports these arguments by setting out the relevant human rights law that applies to the State in this area and relevant factual evidence.