Committee Stage Amendments to the Capacity Bill – Semantic Change or Real Reform?

committeeTomorrow, the Assisted Decision-Making (Capacity) Bill finally progresses to Committee stage in the Dail. This Bill seeks to abolish the outdated ward of court system which currently provides the only mechanism in Irish law for removing the legal capacity of an adult and appointing a substitute decision-maker to take legal actions on that adult’s behalf. The introduction of this Bill has been broadly welcomed by civil society, organisations of persons with disabilities, healthcare professionals, families and state bodies – especially as it has been recognised by government as a key reform which is needed in order to enable Ireland to ratify the UN Convention on the Rights of Persons with Disabilities. However, many organisations and inviduals, including a coalition of NGOs working in the fields of disability, mental health and ageing – have identified changes which need to be made to the Bill to ensure that it fully respects the rights of adults in Ireland to make their own decisions, with support, if they wish.

The Department of Justice has published the amendments it proposes to introduce to the Bill at Committee stage here – where you can also read the amendments proposed by all members of the Dail Select Committee on Justice, Defence and Equality. Some of the amendments proposed by the Department are most welcome – and respond to the concerns highlighted by NGOs based on the text of the Bill as first published. One such amendment is the proposal to remove co-decision making agreements from the court process and to make them a more flexible and accessible instrument, similar to the decision-making assistance agreement. Another example is the change in the name of the state body which will oversee implementation of the new law, from the ‘Office to Public Guardian’ to the ‘Decision Support Service.’ While this might seem like a minor change, it can be viewed as an important reaffirmation of the purpose of the legislation – not to provide for paternalistic interventions into people’s lives – but rather to support individuals’ autonomy and self-determination.

However, other amendments proposed by the Department of Justice demonstrate that the ‘paradigm shift’ called for by the UN Convention on the Rights of Persons with Disabilities has not yet been fully achieved. The Centre for Disability Law and Policy, along with other NGOs, has argued that in order for the Bill to have practical and meaningful effect in the lives of people with disabilities – the threshold for ability to enter into a decision-making assistance agreement should be lowered from what was set out in the original text of the Bill. This has not been included in the Department’s proposed amendments to the Bill at Committee stage.

Further, the UN Committee on the Rights of Persons with Disabilities has now clarified in General Comment 1 that ‘perceived or actual deficits in mental capacity’ can never be used as a justification for a denial or restriction of legal capacity, ‘even in respect of a single decision.’ The Capacity Bill, as originally drafted, relied on an ‘assessment of mental capacity’ to determine what kinds of support an individual could access under the Bill, or whether an individual would have her legal capacity restricted by the appointment of a decision-making representative (a form of substitute decision-making). The amendments set out by the Department have not changed this approach – but the Department has proposed to replace the term ‘mental capacity’ in the Bill with the term ‘decision-making capacity.’ In my view, this change is no more than window dressing, as ‘decision-making capacity’ is given the same meaning as ‘mental capacity’ and continues to be used as a basis for restricting legal capacity. A similar critique can be made the Department’s proposal to remove the term ‘informal decision-making’ from the Bill, while retaining legal protection for third parties who make substitute decisions on behalf of persons who they believe ‘lack capacity’ (the very power which was originally provided to ‘informal decision-makers’ in the original text of the Bill). These proposed amendments therefore, do not address the concerns raised by civil society that those most in need of decision-making support will be denied the opportunity to make binding assistance agreements, and that an unacceptably wide power is granted to substitute decision-makers, who have not been chosen by the person or appointed by the court, to make decisions on behalf of a person they believe to ‘lack capacity.’

Based on the amendments proposed by the Department of Justice, the capacity/incapacity paradigm is now firmly embedded in the Bill – in decision-making assistance agreements, co decision-making agreements, decision-making representative orders, powers of attorney and advance healthcare directives. Again, while a number of submissions were made by NGOs to the Department to advocate that advance healthcare directives be recognised as legally binding in situations of involuntary detention (see here and here) – this proposal has not been reflected in the amendments introducing advance healthcare directives to the Bill at Committee stage. Finally, the relationship between this Bill and other areas of law where ‘mental capacity’ or ‘decision-making capacity’ is used as a criteria to restrict or deny legal capacity (for example in mental health law, sexual offences and eligibility for jury service) has not been clarified in the amendments proposed at this stage.

Along with many others, I will be watching the debate tomorrow with interest, and hope to see some of the concerns outlined here addressed by the members of the Committee. This debate is all the more significant since the Bill is one of the key pieces of legislation which government has deemed necessary in order to facilitate Ireland’s ratification of the UN Convention. In my view, if the Bill is not amended to ensure compliance with the UN Committee’s interpretation of Article 12 of the Convention, then it will remain a barrier to Ireland’s ratification of this important human rights treaty.

NUI Galway to Host Conference Entitled 'Spending Socially- Achieving Social Value Through Public Procurement'

SSNUI Galway will host a conference entitled ‘Spending Socially- Achieving Social Value Through Public Procurement’ on Monday, June 15, 2015 from 10:00 AM to 4:00 PM.  This event will bring together, for the first time in Ireland, a unique range of experts in the fields of public procurement and the social economy. The aim is to explore the potential uses of social clauses in public contracts and to encourage a discussion on the social benefits that can be achieved through targeted government spending. This will support capacity building with respect to tendering processes, in particular for those interested in promoting social enterprises that focus on creating employment opportunities for marginalized groups.

Derek Nolan TD, will open the event and speakers will include members from the Office for Government Procurement, the Strategic Investment Board, (NI), the NOW Project, (NI), and the ‘Ready for Business’ Organisation, (Scotland), and many more experts.

The conference will explore the procurement landscape in Ireland with a view to understanding how social enterprises could be supported to offer their services and bid for tenders.  The Conference report will be presented to Minister Brendan Howlin, TD, Minister for Public Expenditure and Reform on later in June.

To find out more and register online please see here.

Ireland’s Record on Social, Economic and Cultural Rights – Disability and Mental Health Perspectives

unpoNext week Ireland will be examined by the UN Committee on Economic, Social and Cultural Rights (CESCR) – and the impact of austerity measures on the Irish public over the last several years will be scrutinised. In this post, I highlight some key issues from a disability and mental health perspective which might be addressed by the Committee, based on the concerns outlined by various civil society groups. Continue reading

Socio-Economic Rights, the Constitution and the ECHR Act 2003: O’Donnell v South Dublin County Council in the Supreme Court

Supreme CourtThis note is based on MacMenamin J.’s decision, available here. SCOIRL have a succinct post on the outcome in this case. A decision was also given by McKechnie J, and is not yet available. However, I understand that McKechnie J. came to the same conclusion, albeit for different reasons. With thanks to Patricia Brazil for providing me with a copy of the available decision. As this is a longer post that usual, you can find a copy of this post here.

The Context

On Friday, 13 March 2015, the Supreme Court gave an important decision in the case of O’Donnell v South Dublin County Council (not yet on, Irish Times report here). The case revolved around the statutory duties upon South Dublin County Council (SDCC) in the area of housing and Traveller accommodation. The High Court, in a number of cases: Doherty v SDCC (2007), O’Donnell v SDCC (2007) (Laffoy J.) and O’Donnell v SDCC (2008) (Edwards J) (discussed here, pp 13-14), considered the duties of local authorities under Irish housing law and the impact of the ECHR Act 2003. The Irish Supreme Court have been exceptionally conservative when it has come to interpreting the Constitution as providing any form of socio-economic rights duties on the State.

The European Court of Human Rights has been reluctant to interfere with decisions of state/local housing authorities in the housing law arena. The ECtHR has stated that Article 3 and Article 8 ECHR cannot be interpreted as providing a duty on the State to provide everybody with a home, unless there are very exceptional circumstances at play (see, M.S.S. v Belgium and Greece, discussed in detail here).

The decision on Friday, 13 March 2015 in O’Donnell v South Dublin County Council provides at least a signal, that in very exceptional circumstances, legislative duties coupled with constitutional/ECHR rights may protect socio-economic rights. However, as will become clear below, the decision has not resulted in the provision of accommodation to Ellen (or other members of the O’Donnell family) and Ellen continues to live in accommodation that is inhuman and degrading. Continue reading

Mental Disorder and Punishment in Criminal Law – Seminar

The Socio-Legal Research Centre,  within the School of Law and Government at DCU, in association with the Irish Mental Health Lawyers Association and the Association for Criminal Justice Research and Development, is pleased to announce that Mr.  Kris Gledhill, University of Auckland, will be the keynote speaker at the “Mental Health and Criminal Law” seminar THIS Friday in the Law Society of Ireland.

Venue:  Law Society of Ireland, Blackhall Place, Dublin 7.

Date:    Friday, 23rd January, 2015

Time:  5.30 pm – 8.00 pm

Mr. Tom O’Malley, National University of Ireland, Galway, and Ms. Aine Hynes, Irish Mental Health Lawyers Association, will respond to Kris Gledhill’s paper from an Irish perspective.  Mr. O’Malley will deliver a paper entitled “Mental Disorder and Proportionate Punishment” and Ms. Hynes will speak under the following heading, “Operating The Criminal Law (Insanity) Act:  a Legal Practitioner’s Perspective”. The seminar will be chaired by Judge John O’Connor.

An outline of Mr. Gledhill’s paper is as follows:

“This paper looks at developments in English statutory provisions and case law that are relevant to the question of the extent of criminal responsibility in the case of people with a mental disorder who are convicted of a crime. The focus is not on the situation when there is no responsibility (which arises when there is a successful claim of insanity) or the procedural question of whether a defendant cannot follow the trial process such that he or she cannot be put on trial (fitness to stand trial). Rather, the focus is on the level of responsibility when a defendant who is fit to stand trial is convicted.

One of the statutory developments relates to the circumstances in which responsibility is recognised to be reduced, namely the criteria for the partial defence to murder of diminished responsibility, which was amended in 2009. The other statutory development is two-fold: it involved the introduction of a new sentence under the Mental Health Act 1983, a hybrid order, which allowed the courts to combine a prison sentence with a direction that the defendant be placed in hospital, which was extended in scope by statutory amendments in 2007. As a result of these changes, there has been a significant body of case law, mainly in the context of sentencing decisions, as to whether a person who had a mental disorder at the time of the crime which played a role in the crime nevertheless retained responsibility that merited the punitive response of a sentence of imprisonment rather than the rehabilitative option of transferring the defendant simply to the hospital system (with release dependant on recovery).

What seems to be developing in the case law is the rise of the idea that it is possible to determine that even when a defendant has clearly been mentally unwell at the time of the offending and medical experts recommend that the proper response is that the defendant be transferred into the hospital system, it is possible for judges to discern a residual responsibility or a risk arising from criminality that makes proper a prison sentence even though the defendant clearly needs hospital treatment at the time of the sentence.

One question arising is the propriety of the approach in light of the rights of people with disabilities, including the formulation of those rights under the Convention of the Rights of Persons with Disabilities 2006. Some thoughts are offered on the application of the rights framework to this trend.”

The cost to attend this event is €5.00 per person.  Registration is required.  To buy your ticket and secure your place, please click here.

Book Launch 12th December 2014: Genetic Discrimination – Transatlantic Perspectives on the Case for a European Level Legal Response

9780415836937A new book entitled ‘Genetic Discrimination – Transatlantic Perspectives on the Case for a European Level Legal Response’ published by Routlegde will be launched on the 12th of December 2014.  The book edited by Prof Gerard Quinn (NUI Galway), Dr Aisling de Paor (Dublin City University) and Prof Peter Blanck (Syracuse University) will be launched by Marian Harkin MEP at the European Commission Representation Office, Dawson Street, Dublin.

The book is timely as genetic technologies advance, genetic testing may well offer the prospect of detecting the onset of future disabilities. Some research also forwards that certain behavioural profiles may have a strong genetic basis, such as the determination to succeed, or the propensity for risk-taking. As this technology becomes more prevalent, there is a danger that that genetic information may be misused by third parties and that particular genetic profiles may be discriminated against by employers, by providers of social goods and services, such as insurance companies and even by educational facilities.

This edited book explores the different forms and potential uses of genetic testing. Drawing together leading experts in disability law, bioethics, health law and a range of related fields, it highlights the ethical and legal challenges arising as a result of emerging and rapidly advancing genetic science. On examining transatlantic perspectives on the matter, chapters in the book ask whether the US Genetic Information Nondiscrimination Act (GINA) is proving to be an effective tool in addressing the issue of genetic discrimination and alleviating fears of discrimination. The book also reviews what insights may be gained from GINA within employment and health insurance contexts, and asks how the UN Convention on the Rights of Persons with Disabilities (CRPD) may impact similar debates within the European Union. The book focuses particularly on the legislative and policy framework in the European Union, with an emphasis on the gaps in protection and the scope for specific legislative action in this area.

This book will be of great interest to scholars and students of discrimination law, bioethics and disability law, and will be of considerable use to legal practitioners, medical practitioners and policy-makers in this area.

The launch will take place on the 12th December 2014 at 5pm at the European Commission Representation Office, Dawson Street, Dublin.  If you are interested in attending please RSVP mary.faherty@nuigalway or telephone 091 – 495888.

You can order a copy of the book here.

What's (Still) Wrong with the Symphysiotomy Redress Scheme.

The closing date for applications to the symphysiotomy redress scheme is this Friday.  Assessment has already begun, some redress offers – a very small fraction of the total projected value of the scheme – have already been made and a very small number of those have been accepted. I have written before about the core problem which has dogged this scheme since it was first proposed – it is simply incompatible, in principle, with the requirements of international human rights law. In particular, these women have not been offered any adequate remedy for breaches of their European Convention rights by the Irish state. O’Keeffe v. Ireland confirms that ex gratia redress without an acknowledgement of state liability cannot be considered an adequate remedy. ((See also Romanov v. RussiaYeter v. Turkey))

Since the scheme was announced, less than a month ago, it has been roundly criticised by expert commentators including, most recently, Sir Nigel Rodley of the UNHRC. The devil is in the detail of the implementation. The time limit for application is unconscionable. Women had 20 working days to apply. This is the shortest time limit in the history of any state redress scheme: for example, the Residential Institutions Redress Board time limit was 3 years. The rudimentary progress reports published on the scheme website indicate that 70 women only received their application forms in the first week, because they requested them by telephone. The forms are, of course, available to download from the website, but the survivors of symphysiotomy are often very elderly and may not be computer literate.

Applications made after the deadline may be considered in ‘exceptional circumstances’, but in any case will not be considered if they are made after January 15 2015. ‘Exceptional circumstances’ is not defined within the terms of the scheme. It is worth noting that the same phrase affected the RIRB, and was interpreted in a very conservative fashion, to the particular detriment of applicants who took longer to apply  because they were socially isolated, had intellectual or psychiatric difficulties, or lived abroad. ((See AG v. RIRB [2012] IEHC 492 )) It is beyond doubt that some women who deserve, in principle, to have access to state redress will go without it because the government refuses to give them more time. 70 women have joined Survivors of Symphysiotomy since the UNHRC hearings in July and there may be others.  Two women recently brought a High Court challenge to the scheme because it was not clear that women with dementia could have a representative apply on their behalf.

The Department of Health said yesterday that 257 applications have already been made to the scheme. The progress reports give some indication of what is going on. It is not clear that the scheme can be considered a success. Certainly it is working very quickly. For example, in Week 1, 10 applications were made and 7 of these were assessed and offers made. Everything is moving so quickly, not only because the volume of applications was very low in the beginning, but because assessment is done entirely on paper and payments are not individualised. The sole question for the assessor is whether to put an applicant in one payment band or another, or none at all. There is no hearing, and no finding of liability. Some applications have been rejected, and there is no appeal from the assessor’s decision.

The fact that so many women have made an initial application  does not demonstrate that they are happy with this scheme or that they accept that it offers a better compensation package than they might obtain in court. On November 16, the majority of members of Survivors of Symphysiotomy (S.O.S.) voted overwhelmingly – not for the first time – to reject it. They have no obligation to accept any offer made under the scheme – they may yet withdraw.

The progress reports indicate that ‘a large number’ of the applications already received are awaiting  medical records from hospitals or the preparation of specialist medical reports. This sort of problem was to be expected. Some women, for example, do not have their records because hospitals had levied unaffordable charges to provide them, or had said they were unable to locate them. Access to particular records will make the difference between the minimum award of 50,000 euro and the higher award. Better consultation with Survivors of Symphysiotomy would have made this clear and the scheme could have been designed accordingly. There are about 400 survivors of symphysiotomy known to S.O.S. The women who have not yet made an application may be experiencing related difficulties. How many have the necessary support to travel for medical and legal appointments, gather hospital documentation and so on? It will be very interesting to hear about women’s experiences of compiling and submitting their applications.

The government insisted that most women would already have the necessary documentation available because they have been preparing to sue the relevant hospitals and the state. From the progress reports published, it is clear that this belief was mistaken.  The government envisaged a redress scheme which would be frankly parasitic on the very litigation it purports to protect women from.  Indeed the scheme allows the state to ‘buy’ the results of preparatory work for litigation by providing that solicitors who have already undertaken it will receive some fees and expenses. In a similar vein, the application form also asks applicants to submit copies of all legal pleadings and orders connected with their symphysiotomy.

The 20 day time limit, as the IHREC has noted, makes it very difficult for women to seek independent legal advice before submitting their application, especially if they are starting from scratch. A further 20 day time limit applies once an offer is made under the scheme.  A woman must sign a waiver to accept the offer, in which she agrees to discontinue any legal actions against the state or any of a raft of private parties, and agrees not to pursue any such claims in the future. The waiver is a waiver of constitutional and Convention rights. ((It also, of course, cements the state’s refusal to ensure the possibility of prompt, independent and thorough investigation into the wrong done to these women, by closing off the possibility of private litigation. This was not done in the Magdalene compensation scheme. The waiver is the functional equivalent of an amnesty law, and we know that laws of this kind can be held inconsistent with the duty under the ICCPR to ‘exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities’; see eg Case of Barrios Altos v. Peru. Judgment of March 14, 2001 ))  As such it is crucial that the woman waives voluntarily and with full understanding of the consequences. The pressurised time limit at play here should, accordingly, be a source of some concern. The initial 20 day time limit is crucial too. If a woman had three years in which to apply to the scheme, she might at least have more time to judge the progress of her civil claim and to weigh the associated risks and benefits against the possibilities of a redress payment. As things stand, the scheme is designed to deny her the opportunity for reasoned comparison. The requirement of acceptance within 20 days, similarly, is designed to kill litigation off at the earliest possible opportunity.

The State is the defendant in many of the upcoming High Court symphysiotomy actions. The first two will be heard early next year. So, when the State says that it is offering this scheme to spare women the burden of litigation, it is doing no more than claiming to protect these women from itself. Noreen Burns died last July while attempting to pursue her claim against Holles Street hospital, having been informed in terms reminiscent of the treatment of the late Brigid McCole, that the hospital would pursue her for costs. The ‘robust’ conduct of the defences in symphysiotomy cases has, so far, done the defendants little credit.

For now, the scheme trundles on. But this is not what proper redress looks like.

The Right To Love: Over And Under-Criminalisation In The Sexual Autonomy Of Persons With Intellectual Disabilities.

We are pleased to welcome this post from Alan Cusack, PhD student at the School of Law, UCC.

To mark International Day of Persons With Disabilities, award-winning Galway production company Blue Teapot will stage a special performance of Sanctuary, written by Christian O’Reilly, this coming Wednesday night in the Liberty Hall Theatre, Dublin. The play tells the story of Larry and Sophie- two adults with intellectual disabilities- who, in the course of a daytrip to the cinema convince their care worker, Tom, to book them a hotel room so that they may have some private time together. Superbly written by O’Reilly and sublimely delivered by Charlene Kelly and Kieran Coppinger- both of whom have an intellectual disability- Sanctuary offers a funny, touching and human account of the barriers which unmarried adults with intellectual disabilities continue to face in Ireland.


At present, under Irish law, persons with an intellectual disability are faced with the threat of criminal prosecution if they engage in a sexual relationship with a person to whom they are not married. This highly draconian state of affairs owes its origin to section 5 of the Criminal Law (Sexual Offences) Act 1993 (hereinafter ‘the Act’) which explicitly criminalises the sexual activity of persons who, to quote the Act, have a ‘mental impairment’. Significantly, section 5 is a strict liability offences which means, in effect, that the fact that the parties consented to the sexual intimacy is not, of itself, a valid defence. No criminal offence is committed however if the parties or married to each other, or if the victim is shown to be capable of living independently and protecting him or herself against abuse.


Criticisms of the Act can be brought on two seemingly competing, but entirely legitimate grounds; that it both under-criminalises and over-criminalises this sensitive area of sexual activity. In relation to the former argument the Act has rightly been criticised, by academics and advocacy groups alike, for fundamentally failing to recognise that persons with an intellectual disability can engage in consensual sexual activity. Indeed this over-criminalisation of a person sexual autonomy was expressly acknowledged by the Law Reform Commission in its 2005 Consultation Paper, where it noted that

“a regrettable effect of section 5 of the 1993 Act is that, outside a marriage context, a sexual relationship between two ‘mentally impaired’ persons may constitute a criminal offence because there is no provision for consent as a defence in respect of a relationship between adults who were both capable of giving a real consent to sexual intercourse” (Law Reform Commission, Consultation Paper on vulnerable Adults and the Law: Capacity (Dublin: Law Reform Commission, 2005) at p.141).

Although no known prosecutions have been taken under the Act to date, the continued existence of this offence on our statute book has been strongly criticised- most notably by Inclusion Ireland- for cultivating a fear amongst care workers, family members and persons with an intellectual disability of engaging in any act which might be considered to facilitate such sexual activity. In the words of Senator Katherine Zappone, the Act has perpetuated,  a “chilling effect” whereby persons with intellectual disabilities within Irish society are fearful of forming relationships (The Irish Times, 10 June 2014).

In addition, in relation to the latter argument- the theory that the Act under-criminalises this area of sexual autonomy- section 5 has been criticised for offering insufficient protection for persons with an intellectual disability.  Indeed, as the Act only applies to sexual intercourse and buggery, there is an evident and palpable gap whereby the instrument fails to criminalise unwanted sexual contact more generally. The tragic consequences of this legislative gap were recently illustrated in the case of The People (DPP) v XY (Central Criminal Court, 15 November 2010, The Irish Times 16 November 2010). In this case the accused was alleged to have forced a woman with an intellectual disability to perform oral sex with him. As this form of sexual conduct did not come within the scope of section 5 of the Act, the accused was charged with an offence under section 4 of the Criminal Law (Rape) (Amendment) Act 1990. On this issue White J., in his judgment, noted that “the Oireachtas when they introduced the 1993 act did not fully appreciate the range of offences needed to give protection to the vulnerable”. In the particular circumstances of this case, given that there was no evidence of assault or a hostile intent on the part of the accused, the trial judge directed the jury to acquit the defendant stating that it was no appropriate for the judiciary to fill the “lacuna in the law”.

From an international perspective, it is unquestionable that section 5 of the Act is in breach of Article 23 of the UN Convention on the Rights of Persons with Disabilities (hereinafter ‘UNCRPD’) which expressly requires State Parties to take “effective and appropriate measures” to eliminate discrimination against persons with disabilities “in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others”. Moreover, it is arguable that the Act is in breach the principle of equal recognition as enshrined in Article 12 of the Convention as it fails to respect the decision-making autonomy of persons with intellectual disabilities in the same that the decisions of non-disabled persons are respected.

In light of its overtly discriminatory effect, it is hardly surprising that section 5 of the Act has long been criticised for representing a disproportionate interference with the sexual autonomy of persons with intellectual disabilities. For instance, Inclusion Ireland has been vocal in its opposition of this provision since 2003 when the group argued in its consultation document ‘Who Decides and How’ that the existing law was overly onerous and insensitive. Similarly, the Law Reform Commission, in its Consultation Papers from 2005 and 2011 respectively, criticized the burdensome and discriminatory effects of the Act. In particular, in its 2011 Consultation Paper, Sexual Offences and Capacity to Consent: Consultation Paper, the Commission recommended that section 5 be replaced by a new provision which would cover all forms of sexual acts. Moreover the Commission recommended that “there should be strict liability offence for sexual acts committed by a person who is in a position of trust or authority with another person who has an intellectual disability” (at p.179).

There is, however, a reason to be hopeful. Significantly, and in a long-overdue response to this growing body of public criticism, our legislature has recently expressed its commitment to reforming this sensitive area of law. The primary impetus for this belated, but very welcome, legislative activism can be attributed to Senator Katherine Zappone who, on 13 May 2014, published a new bill to reform this area of law, namely the Criminal Law (Sexual Offences) Bill, 2014 (‘the Bill’). Colloquially dubbed, the “right to love” bill, this legislation is aimed at reforming our law so as to ensure that persons with an intellectual disability have the same freedom to consent to sexual activity as persons without a disability. In this regard, it is expected that the bill will strike a better balance in respecting the sexual agency of a person with an intellectual disability while also providing an important safeguard against sexual abuse.

The Bill- which was researched by Dr. Eilionóir Flynn and Anna Arstein-Kerslake of the Centre for Disability Law and Policy at NUIG and Dr. Brian Hunt- seeks to amend our subsisting draconian law in two key respects. Firstly, and perhaps most importantly, the Bill will repeal section 5 of the Act and will create a disability-neutral offence of abuse of a position of dependence and trust for sexual purposes. This reform is directly reflective of the Law Reform Commission’s recommendation in 2011. Secondly, the Bill will redesign the concept of consent for the purposes of sexual activity so as to make this concept universally applicable so that the same standard will apply to all persons equally. Significantly, in this regard, the Bill removes any consideration of a person’s mental capacity in determining questions of consent for sexual purposes. This marks a fundamental amendment to our subsisting legal position whereby, under our current law, it must be established that a victim has ‘capacity’ to consent before our courts can consider whether in a given case any meaningful consent, in fact, existed.

While these draft provisions are very welcome for representing a carefully considered and long-overdue reformative programme for this very sensitive area of sexual activity, it remains to be seen what form these protections ultimately will take in the final version of the Bill. The Heads and General Scheme of the Bill were formally published by Minister Francis Fitzgerald on 27 November 2014, however, it is notable that Head 12- the section of the Bill dealing with vulnerable persons- was not finalized by the date of publication. Thus it is not yet clear if, and to what extent, the measures contained in Senator Zappone’s draft bill will be retained in the formal Head of the Bill. The Minister has, however, given us reasons to hopeful. In particular the Minister has pledged that the forthcoming proposals will “seek to better balance the need to respect the independence of the intellectually disabled while ensuring their protection from sexual exploitation”. There would, indeed, seem at last, to be reasons to be hopeful for the year ahead.





Anti-vaccination movements, children’s’ rights and private power

We are delighted to welcome back Ntina Tzouvala who is Deputy Co-Convener of Law and Global Justice and a PhD candidate  at Durham Law School. She is currently researching on history and theory of public international law. You can follow her on Twitter @ntinatzouvala

Around a month ago the Wall Street Journal published an article entitled ‘The Anti-Vaccination Epidemic’ , which summarises an ongoing and worrying trend: diseases like mumps, measles and whooping cough are reappearing in the Western world. The reason for this is comeback is the growing anti-vaccination movement both in the US and Europe. Fueled by (dubious) publications that falsely associated certain vaccines (MMR) with autism, and by overemphasising highly exceptional cases of severe side-effects, the participants in anti-vaccination movements refuse to vaccinate their children. Apart from a heavy reliance to conspiracy theories, these movements also rely on the undeniable success the very social practice they oppose: we are no longer afraid of smallpox or rubella precisely thanks to being immunized against them at a very young age. The fact is that historically these diseases claimed the lives of millions of children and if the anti-vaccination movement prevails, they will do so again. The only way for parents to keep their children out of the ‘system’ without seriously endangering them is for them to fail politically: a few free-riders will still be safe given the overall eradication of the diseases due to the overall high rates of vaccination. But if the public campaign of these parents succeeds, then this shield will collapse and it is a matter of time before epidemics of smaller or larger scale return.

What is of interest here are the legal justifications provided by parents for their actions. (Un)surprisingly, there is a long history of civil liberties rhetoric in the UK against compulsory immunisation. After vaccination was made compulsory in 1840 the British society was in unrest and in 1878 a member of the Anti-Compulsory Vaccination League argued:

I. It is the bounden duty of parliament to protect all the rights of man.

  1. By the vaccination acts, which trample upon the right of parents to protect their children from disease, parliament has reversed its function.

III. As parliament, instead of guarding the liberty of the subject, has invaded this liberty by rendering good health a crime, punishable by fine or imprisonment, inflicted on dutiful parents, parliament is deserving of public condemnation.’

Given the general distrust towards governmental intervention at the time and importantly, given that the only conceivable rights at play seemed to be those of the parents, the law was amended in 1898. The amended version arguably introduced the concept of ‘conscientious objector’ in British law, allowing parents who ‘did not believe’ in the effectiveness of immunisation to opt out.

Contemporary protesters rely on the same legal and scientific (in the broadest sense of the word) arguments to justify their choice not to vaccinate their children. This post is not concerned with explaining how science has progressed since then rendering any overall challenge to the practice implausible. What is of our concern here is the modification of the legal background since the end of the 19th century. Two things need to be noted here: first, the classical, liberal conceptualisation of rights as shields against state interference is now complemented -to an extent- by an understanding that state intervention is necessary for the meaningful enjoyment of such rights, especially by vulnerable groups. Further, the conviction that children enjoy rights that are not identifiable with those of their parents has entered the legal equation. In the international realm this conviction is materialised through the Convention of the Rights of the Child (CRC hereafter), an instrument that according to UNICEF changed the way we see children from passive objects of care and charity to human beings with a distinct set of rights.

Sadly, any analysis based on the CRC is not applicable in the US, since the state has signed but not ratified the Convention. Nevertheless, it is applicable almost worldwide, and therefore we need to pay close attention to it. Directly relevant here are the Article 24 on the right to health and the General Comment 15 of the CRC Committee that elaborates the details of the right. Moreover, Article 3 para. 1 stipulating that all decision-making should be guided by the ‘best interests of the child’, Article 12 dictating that children should be provided ‘the opportunity to be heard’ and ‘due weight’ should be given to their opinions and finally, Articles 5 and 14 that guarantee parental rights are significant for this debate.

More specifically, Article 24 stipulates that children are entitled to the enjoyment of the ‘highest attainable standard of health’, they should not be deprived of their right of access to such health care services’, while there are explicit references to preventative health care and utilisation of technology, in order to promote the right to health. Moreover, we are confronted with one of these (rare) circumstances when there is a rather objective basis for judging what is ‘at the best interests of the child’. In principle, pluralistic societies with different and often conflicting understandings of what amounts to ‘good life’ grant parents with a wide margin of appreciation (in the non-Strasbourgian, ordinary sense of the term) in the making of such decisions. However, vaccinations are specific in two interrelated ways. General Comment 15 obliges the states to decide on Article 24- related issues according to ‘evidence-based public health standards and good practices’, setting therefore a rather objective, scientific standard for what is at the best interest of the child. Further, in its commentary on Article 3 the Committee clarifies that ‘best interests’ apply both to individual children and ‘children as a group’. This is of importance, since refusal to vaccinate one’s children is in many aspects dissimilar from refusing, for example, blood transfusion on religious grounds. In the latter case it is the specific child that is endangered (which is bad enough), whereas in the former there are legitimate general public health concerns. Moreover, this practice endangers these vulnerable children who due to genuine medical reasons cannot be vaccinated. Luckily, when immunisation levels are high these children’s health is protected thanks to our ‘herd immunity’. They might not be immune to the disease themselves, but they will probably never face the risk anyway, since everyone else is and therefore it is highly unlikely for them to be infected. Any state policy towards the anti-vaccination movement needs to take into account the rights and best interests of these children as well.

Another legal argument invoked by parents is that compulsory vaccination violates their (and their children’s) right private and family life under Article 8 of the ECHR. This argument does not seem to be legally tenable. In fact, the European Court of Human Rights had the chance to rule on Article 8 and compulsory vaccination in 2012 in Solomakhin v Ukraine. It needs to be stressed that when Solomakhin was subjected to compulsory vaccination he was a full- grown adult. Still, the court found that even though compulsory vaccination evidently interfered with his bodily integrity and therefore fell under Article 8, the interference was justified in a democratic society as it ‘could be said to be justified by the public health considerations and necessity to control the spreading of infectious diseases in the region.’ Arguably, if this is the case when it comes to a 35-year-old man, it is highly unlikely that the ECtHR would find a violation of the parents’ rights when it comes to vaccinating children 1 or 5 years old (these are ages the two rounds of MMR vaccination commonly take place), especially if we take into account the children’s rights under the ECHR and the CRC.

This does not necessarily imply that states are under an obligation to introduce compulsory vaccination for children. Questions of policy efficiency are of direct concern here and each state can make to appropriate choices taking into account the rights and interests of all individuals concerned and , of course, the interests of the society as a whole with a special focus on its more vulnerable members who arguably will suffer disproportionally from a disease outbreak. For example, in the light of the overall circumstances a state might choose to initiate an information campaign rather than resort to criminalisation of parents that refuse to vaccinate their children. Nevertheless, it needs to be stressed that the rights- based rhetoric of the anti-vaccination movement does not seem to take into account the actual international human rights documents and courts decisions. Further, this human rights rhetoric draws from an intellectual and political tradition with a very narrow understanding of human rights and, importantly, a very exclusionary conceptualisation of who is actually the bearer of these rights.

One final note: it is very easy and very appealing to dismiss these movements as manifestations of lunacy and poor education. Nevertheless, this attitude does not explain why and how these movements are fuelled periodically and more specifically now that no major publication (however ill-researched) on the topic has come out. My feeling is that- up to an extent- the revival or appearance of such movements is attributable to an overall distrust towards the state and a trend to conceptualise the private sphere exclusively as one of freedom and, in this case, care and love. Arguably, these sentiments are cultivated by states themselves through their turn to a neoliberal agenda that discredits any conception of public good and prioritises a very narrow understanding of what it means to live in a society, and even to be an individual. Interestingly, children’s rights and children’s welfare more broadly is one of the starkest examples of how less state involvement does not necessarily lead to more freedom. Rather it can well lead to an increase of private power, which being private, and in this case accompanied by love and affection, is not easily identifiable.

Civil and political rights in mental health – Ireland's dialogue with the Human Rights Committee

Screen-Shot-2014-04-02-at-6.12.42-PM-475x280Ireland’s progress in implementing the International Covenant on Civil and Political Rights (ICCPR) is due to be examined by the Human Rights Committee next Monday. Many civil society organizations have provided information to the Human Rights Committee on the reality of civil and political rights protections in Ireland – including Amnesty, ICCL, IPRT, Survivors of Symphysiotomy, LGBT Noise, and others. However, relatively few of the submissions made focus on the violations of civil and political rights which affect people with disabilities and those with experience of the mental health system. One submission which does address these issues is that made by the Recovery Experts by Experience (REE) – a group of ‘experienced users/survivors of Mental Health Services, formerly known as the Expert by Experience Advisory Group (EEAG) to Amnesty International Ireland’s Mental Health Campaign.’ You can read the full text of the submission here. Continue reading