Introduction

Following the collapse of the Disability Bill 2001, the Disability Legislative Consultative Group (DLCG) was set up by the National Disability Authority and the Department of Justice to facilitate meaningful dialogue. After widespread consultation with the disability sector, the DLCG published its recommendations in the document ´Equal Citizens: Proposals for Core Elements of Disability Legislation´. On 17th September 2004, the Government published its new disability legislation, the Disability Bill 2004.

This document will highlight the key concerns of Shine about the Disability Bill 2004 relative to people with a mental disability.

GENERAL

People with a Mental Disability May Not Be Covered by The Bill

The definition of ´disability´ in the Bill (taken from the National Disability Authority Act 1999), is different from that in the Equal Status Act 2000. The Bill?s definition says that the disability must be "enduring", thereby potentially excluding people with a mental disability. The definition in the Equal Status Act 2000 includes "a disability which exists at present or previously existed but no longer exists or may exist in the future or which is imputed to the person."

PART 2: NEEDS ASSESSMENT PROVISIONS

No Right to Needs Assessment For People with a Mental Disability

To be eligible for a needs assessment, the person must have a disability which is "permanent or likely to be permanent, results in a significant difficulty in communication, learning or mobility and gives rise to a need for services to be provided to the person continually." It does not appear that people with a mental health difficulty would be included under this definition.

Even if the definitions were amended to include people with a mental disability, the following issues would remain of concern:

Assessment Officers, Complaints Officers and Appeals Officers Not Independent

Assessment Officers and Complaints Officers will be employees of the Health Boards and therefore will not be independent, though they are required to be independent "in the performance of his or her functions". The Bill allows for delegation of assessment to any "other persons with appropriate experience". This leaves open the possibility that a service provider could be subcontracted to carry out assessments, creating a conflict of interest.

The Appeals Officer is appointed by the Minister for Justice, Equality and Law Reform and thus is also not independent of Government. It is possible that an Appeals Officer could be asked to investigate a case regarding the provision of services by his or her own department, the Department of Justice, Equality and Law Reform, for example, if the applicant was involved with the criminal justice system. It would be preferable if the Appeals Officer were completely independent, as in the Ombudsman.

Access to Appeals

Appeals must be lodged, in writing, within 6 weeks of the decision to which they refer (see Section 17(2)). This could have the effect of denying access to appeal for a person who, during the 6 weeks after the decision, lacks capacity to initiate such an appeal.

Needs Assessment Limited to Health & Education

The Bill does not provide for assessment of housing need, or any other social need apart from education.

No Right to Services

Even after a needs assessment is made, the provision of services are subject to a Liaison Officer. The Liaison Officer is required to have regard to the ´practicability of providing services´ and the need to ensure that the services will not result in extra expenditure by the Health Board. There is thus no right to services per se in the Bill.

Resource Constraints

The Bill limits resources for the provision of services to whatever is ´practicable´ and will not result in any excess of expenditure over the amount allocated at the beginning of a financial year or any indebtedness by the Health Board or education service provider. This suggests that, unlike most other government services, no additional resources can be requested for assessed services within any financial year.

The Bill provides carte blanche to the Minister for Justice, Equality and Law Reform, in any year, to determine the proportion of his budget which goes to these services, but specifies that this allocation cannot negatively impact on any other functions of the Minister. This leaves open the possibility for the Minister to re-allocate funding for the services in this Bill to other services, but not the reverse.

The effect of these two subsections (5(2) and 5(3)) is to prioritise resources for all other functions of the Minister higher than the services in this Bill.

Advocacy

The inclusion of advocacy services is to be welcomed. However, we would be concerned over the location of advocacy services within the Government agency Comhairle. There may be a conflict of interest where the advocacy is required in respect of another State body, or Comhairle itself. In addition, such advocacy will require significant additional resources. Finally, in order to be eligible for this advocacy, the person must fit within the definition of disability in the Bill, which as stated above, potentially excludes people with a mental disability.

PART 3: SECTORAL PLANS

The Bill instructs each Government Ministry to create a "sectoral plan" containing "information" concerning that Department´s services for people with disability. The term "information" suggests no obligation to provide firm commitments in such plans. The Dept. of Health´s Outline Sectoral Plan is largely a re-statement of existing policy and refers to implementing Planning for the Future, 1984 and the Mental Health Act, 2001.

PART 4: GENETIC TESTING

The Bill makes provision, for the first time, for genetic testing and processing of genetic data. While it may be necessary to establish such a provision, it would be preferable if this very important ethical issue were separated from the Disability Bill in order to allow for proper public debate on its potential consequences.

PART 5: PUBLIC SERVICES

The Bill puts the 3% quota for employment of people with disabilities in the Public Sector on a statutory basis. However, the compliance provisions for this section are weak, in so far as they state that a non-complying body can be ´requested´, not required, to comply (Section 47(1)).

Shine calls on the Department of Justice, Equality and Law Reform to address the concerns outlined and requests that the Bill be amended to reflect these concerns.

Click here to view the full text of the Disability Bill 2004: www.justice.ie/en/JELR/Disability+Bill+Guide.pdf/Files/Disability+Bill+Guide.pdf