Tuesday, 14 June 2005
Seanad Eireann Debate
I welcome the Minister of State to the House. I am suggesting that the definition of “disability” should be broader, with a broader Title encompassing more of what we really intend to provide for people with disabilities. As it is currently drafted, the form of wording is unacceptable. As the Minister of State was involved in the debate on the Bill in the Dáil and has now had some time to consider that debate, I would be interested to hear what he has to say on this matter. He should consider more favourably the suggestion that instead of calling this legislation the Disability Bill 2004, it should be called the assessment and services for people with disabilities and miscellaneous provisions Bill. The latter title describes more accurately what we are trying to achieve for people with disabilities.
Minister of State at the Department of Justice, Equality and Law Reform (Mr. Fahey): In preparing the national disability strategy, the Government sought to introduce practical and effective measures to support participation by people with disabilities. This includes, but is not exclusively concerned with, the provision for rights to assessment provision, complaint appeals and enforcement, as promised in An Agreed Programme for Government.
Amendment No. 1 proposes to insert a new Short Title, which would place major emphasis on the assessment and related services to be provided in Part 2. In doing so, it regulates the remaining provisions of the Bill, which are dealt with in Parts 3 to 7, to the status of miscellaneous provisions. The Bill represents a more comprehensive response to the concerns of people with disabilities than the proposed Title seeks to convey. As a result, I am not disposed towards accepting the amendment.
Ms Terry: I will not press the amendment but I am disappointed by the Minister of State’s response. I do not accept his argument. The proposed Title would more accurately deal with what we are seeking to achieve. The Minister of State’s concerns could and should have been dealt with later if the amendment has an impact on other sections, which we will be dealing with through later amendments.
Mr. Kett: I support the Minister of State’s view. The word “disability” conveys exactly what the Bill is about. The amendment refers to the “assessment and services for people with disabilities”, but says nothing about treatment. If one is going to be prescriptive, one should take into account all the elements associated with the needs of people with disabilities.
Mr. Quinn: Senator Terry is probably right not to press the amendment but her point was also made by some Senators on Second Stage. In that debate I commented that those who are involved with disabilities have become more positive and use the term “ability”, rather than “disability”. I do not, however, suggest an amendment along those lines.
We need to have a much more positive attitude to disability but I am not sure that is being shown in the Bill. It is more of a corrective measure and, while aimed in the right direction, it needs a more positive attitude. The term “ability”, as used particularly in the ability awards, expresses that idea quite well. I am not suggesting that it requires an amendment on this Stage, but Senator Terry’s interesting point deserves support.
Mr. Dardis: I agree with Senator Quinn that we should emphasise people’s abilities, rather than concentrating on their disabilities. That is increasingly happening. A Short Title is needed for the Bill, which deals with people who have disabilities. The purpose of Senator Terry’s amendment is covered in the Title, which contains adequate details concerning the scope of the Bill. A shorthand Title is perfectly adequate. I suspect that even if the amendment were to be accepted, people would continue to call it the Disability Bill, or the Disability Act once it becomes law.
Ms Terry: I thank Senator Quinn for his remarks, with which I agree. There is no one better placed than Senator Quinn to speak on behalf of people with disabilities as he has given employment to such people. His work in this regard is highly commendable. He is sensitive to the matter and I respect the work he has done in this area.
I do not agree with what Senator Dardis said. We should not accept that something is a fait accompli and will always remain so. A different Title for the Disability Bill would be to the advantage of many people who may come within its ambit. The Title envisaged by my amendment would help in that respect. While I acknowledge that much work has been done in this area, we must get away from labels. I am still of the opinion that my proposed Title would be better than the existing one. In later amendments I will deal in more depth with the definition of “disability”. I will withdraw the amendment at this stage.
The accessibility of public and private services provided to the public needs to be guaranteed in this legislation within the broadest possible definition, so that it includes the right to physical information, communications accessibility and genuine, reasonable accommodation. This should be given the highest priority and set within acceptable timeframes. All bodies, public or private, that come into contact with the public should be covered by the legislation. These points have also been made by the Disability Legislation Consultation Group.
As regards amendment No. 4, the Irish Congress of Trade Unions recommended the amendment of services to include services provided by or on behalf of a public body. As currently drafted, the exclusion could be as far reaching as to include State-sponsored bodies, voluntary bodies and even some disability service providers.
Mr. Fahey: The provision of access to specialist and mainstream public services is the focus of the Bill. The proposed amendments would considerably widen the scope of the Bill to the entire private sector and to private and voluntary bodies to provide services on behalf of the State, or those which are publicly funded. Essentially, the Bill is a positive action measure geared to support participation by people with disabilities in society. It places significant positive obligations on public service providers in this regard. The extension of such obligations to voluntary and private bodies could be viewed as an unreasonable encroachment into service organisations, particularly those run on a commercial basis. These organisations are already obliged to comply with employment equality and equal status legislation, which is of relatively recent origin.
To give an example of such obligations, cinemas and shops will have to retrofit their premises over the next ten years, sports centres will have to present all their literature in accessible forms, irrespective of the cost, and organisations such as the National Women’s Council, which is in receipt of State support, will have to ensure that any service it purchased was disability accessible.
This legislation places a significant obligation on public bodies. It will prove costly for the public sector, so it was felt that such a legislative obligation on the private sector or voluntary bodies would be a counter-productive burden. Other areas of the Bill cover the provision by the private and voluntary sectors of disability-friendly services.
Mr. Kett: I agree with the Minister of State. There is a serious obligation on bodies which supply various services to health boards. If they are manufacturers they must first register with the Irish Medicines Board and must also obtain a qualification which I understand is called a C2 certificate, regarding certain standards.
Some operators within the health system went out of business within a short period of time, one of the reasons being that they could not meet the cost of implementing certain measures. One must consider, for example, the number of safety measures to be adhered to by ambulances transporting those suffering from disabilities. Some private ambulance operators are likely to be driven out of business because of the new legislation being introduced in Europe. Substantial additional costs will be involved if the laws are to be adhered to. I take the point made by the Minister of State in that regard and I support him in this matter.
Mr. Quinn: Senator Terry has made a strong point, but perhaps this is not the occasion for it. It is important that we get this Bill passed. It has been in existence for some time and has been amended over the years. If we were now to add an element as demanding as that sought by Senator Terry — though it is worthy — the Bill would be further delayed.
There are serious concerns about regulatory impact analysis assessments which should be done for almost any Bill coming through the Houses, which involve the effects on the cost structures of organisations. If we are going to add elements to this Bill without doing a regulatory impact analysis, we would delay it even further. Though I support much of Senator Terry’s work regarding this Bill, on this occasion I must support the Minister of State.
Ms Terry: I accept in principle what the Minister of State says, but what guarantee can he offer that any private body which provides a service to people with disabilities will make its buildings accessible? I am not sure that will be done, while incorporating the amendments into the legislation would guarantee accessibility. We must set high standards, though I accept that costs can be incurred. However, since taxis, ambulances and buses are now being made accessible to all, people now know that when they set about constructing anything, they must do it in a certain manner, and if access is built in at the start, no extra cost is incurred. We must set down the rules and guidelines at an early stage as a flag to people that this is what we expect, and that we expect nothing less.
Ms O’Rourke: I have sympathy with Senator Terry’s viewpoint, though that does not mean I will support her amendment. Building regulations are now quite demanding. Any current planning application for a house must allow for a conversion in the future, if that were to be needed for a person with a disability. No doubt Senator Terry feels that if no legislative demand for disability access is made, people will feel they need not comply. That is a fair point when we are trying to raise standards for public facilities and ensure they are accessible for those with disabilities.
Amendments Nos. 3 and 4 are ahead of their time, so to speak. The hope would be that as services become more open to those with disabilities, the onus will be on private bodies and groups to raise their standards too. The amendments are well designed but perhaps a little advanced in terms of what this legislation involves.
Mr. Fahey: Private bodies are already covered under the equality legislation by the requirement for reasonable accommodation to be provided. Part 5 of the building regulations also lays down standards which must be adhered to by the private sector.
The Bill covers a wide range of companies and semi-State bodies. They include the Broadcasting Commission of Ireland, the Central Statistics Office, the National Development Authority, the Courts Service and the Legal Aid Board. Bodies established under the Companies Act, such as Bus Éireann, Dublin Bus and Iarnród Éireann, will also be covered. There are provisions in equality legislation and in the building regulations which place obligations on private sector organisations. To be fair, the private sector has responded well to the requirements for access by people with disabilities. We hope that the thrust of this legislation will add further to the creation of a culturally inclusive society as far as people with disabilities are concerned.
Mr. Dardis: Private bodies have obligations, but one cannot institutionalise within the legislation moral obligations for public or private bodies. As the Minister of State noted, the scope of the Bill is already very wide. Under section 2(1)(h), a public body can mean:
It is almost as if we are treating this Bill in isolation from all other legislation. A corpus of legislation already exists with regard to building regulations, equality, equal status and so on. That legislation is there for support, and to ensure that private bodies act in a responsible and correct manner, apart from their moral obligation which we hope they would take on board. The scope of the Bill is already very broad and it would not add a great deal to incorporate that extra dimension. It is laudable to try to achieve it, but it cannot be achieved within the scope of this Bill. If the issue is not already dealt with — I suggest it is — by the other legislation supporting the Bill, there may be a case for extending the scope of the surrounding support legislation.
Ms Terry: I will not press it now, but I will bring it forward again on Report Stage. I accept the case could be made that the thrust of amendment No. 3 may be too broad, for example, requiring the corner shop to be accessible. Of course, any new corner shop being built should be accessible and the regulations will ensure that.
In amendment No. 4, I suggest that “any body which is publicly appointed, which is funded by public money or which carries out public functions designated by law” should be accessible. Any company carrying out the work of the Government and providing services to the public should be accessible. More often now local authorities employ contractors or consultants to do work. I want to ensure that such places or bodies are compelled to be accessible. I will not press the amendment now, but I will raise it on Report Stage.
Ms Tuffy: My amendment under this section was disallowed. I have just looked through the list of amendments that have been disallowed and nine of mine are included in it. Many of them deal with the fundamental debate about whether this Bill is sufficient. The imposition of the rule with regard to amendments that put a charge on the State stifles debate on the Bill. This is not the first time we have had this problem, but it is a particular problem with this important Bill.
Ms Tuffy: I do not know about that. When I consider some of my amendments, the changes involved are only a matter of degree or wording. For some reason some of my amendments that change “may” to “shall” have been allowed. One could argue that changing from “may” to “shall” puts a charge on the State.
Ms Tuffy: I would like this issue reviewed because we cannot debate this Bill properly. Many of my amendments raise fundamental issues, including an issue raised with me by the Disability Federation of Ireland which the Taoiseach is, supposedly, considering, but I cannot put that amendment in the House because it has been disallowed.
The amendment disallowed in this section removes the word “substantial” to leave just the word “restriction”. It is a matter of interpretation as to whether that puts an extra charge on the State. Somewhere else an amendment changes the definition from “intellectual impairment” to “mental health or learning disability”. Does that put an extra charge on the State? The question arises as to whether the Government is acting in good faith on this legislation when it is so cautious that amendments that are just a matter of degree or interpretation are disallowed as involving a charge on the State.
I have not had the opportunity to examine all those amendments disallowed but after a brief look through my other amendments, I question the decision to disallow them. While this issue has been raised previously, it should be reviewed because it puts in question the role of the Seanad when something as important as the Disability Bill arises and we are stifled in terms of debating core fundamental issues that were raised in the Dáil, for example, the issues of resources, disability proofing and the definition of disability. We cannot define a word or define the concept of disability in case it puts a charge on the State. That is outrageous and ridiculous. It questions the role of the Seanad.
I hope the Leader will take on board the suggestion that we should examine this issue. We should consider whether within the Constitution and current legislation there is some way we can soften this rule. If that is not possible, the issue should be looked at under Seanad reform. The reason we suggested the definition in our amendment is because we looked at the definition in the Education for Persons with Special Educational Needs Act and felt it would be more appropriate in this Bill.
Mr. Dardis: I do not disagree that we should examine this issue under Seanad reform. However, this is a ruling from the Chair and is not a matter for debate. It would be entirely wrong therefore if, on the basis of what Senator Tuffy has said, the impression was given that something mischievous was being done to prevent these matters from being debated. I raised the issue of disability on Second Stage, which was the appropriate arena.
Whether it is the Disability Bill or any other Bill coming through the House, we cannot introduce an amendment that imposes a charge on the State. It is out of order to do so and we cannot do it. There are other ways of raising these important issues. I do not want anybody outside the House to have the impression that something was done here to prevent them from being debated. This provision with regard to a charge on the State is a standard provision and a constitutional obligation on the House. We know well that when we debate the Finance Bill we do not have amendments, but recommendations. We must be clear with regard to our powers. However, that is not to say the issue should not be discussed under reform of the Seanad. It should, but it is a constitutional issue that is involved.
Acting Chairman: I understand that the rule also applies in the Dáil and that it is a matter for the Executive. Perhaps the matter could be looked at by the Committee on Procedure and Privileges and it might be useful to provide an explanatory note so that Senators would understand the situation better.
Acting Chairman: The Dáil observes the same rule. The Committee on Procedure and Privileges can examine the matter, but I presume the constitutional position will prevail. Perhaps Senators should be given an explanation so that they better understand the situation.
Mr. Fahey: This change was sought by the Disability Legislation Consultation Group, DLCG, at its recent meeting with the Taoiseach on 25 May when the Taoiseach indicated that the matter would be reviewed. Having reviewed the matter, the Government is prepared to make the related change to the Bill.
The Government sought consistency in the language used in this subsection with that in the earlier subsection (3). The purpose of the suggested change is to ensure a fair balance between the criteria used in making allocations for disability services and for other areas of public service activity. I fully appreciate the concern, which has been expressed by many people involved in the disability sector, that resources should be properly and consistently provided for disability services. I have listened carefully to the arguments which have been made about how this may best be provided for in this legislation. The amendment made to section 5 in the Dáil, when taken with the amendment before the House, will provide a clear reassurance that disability services will not be overlooked and that resources allocated for disability services will not be channelled to other areas.
Ms Terry: I accept that the Disability Legislation Consultation Group asked the Minister of State to propose the amendment before the House in the interests of improved wording. I support the many groups which are seeking to ensure that adequate funding will be allocated for disability services. They do not want the disability sector to be at the bottom of the Government’s list of priorities when funds are being provided. The economy might not always be as good as it is at present. Services will have to be cut and belts will have to be tightened in the event of an economic downturn. We need to ensure the provision of services for people with disabilities will not be seen as a low priority in such circumstances. Such services will have to be seen as favourably as the other services which are provided by the State. I welcome the Minister of State’s decision to take on board the request made by the groups involved in the disability sector.
Mr. Kett: I support the remarks made by Senator Terry. Section 5(4) states that “in determining the appropriate allocation under subsections (2) or (3) in a financial year, the Minister or specified body concerned shall ensure that the amount remaining after the allocation is not less than the amount that is required”. I do not understand what is meant by “the amount remaining after the allocation”. Senator Terry spoke about this matter. Will allocations be made to the disability sector at the same time that all other allocations are being made by Ministers? I hope this section of the Bill does not mean that allocations will be made to the disability sector from the overall fund that is available after allocations have been made to all other Departments.
Ms O’Rourke: I agree with the amendment before the House. The proposed new section 6 states that the Minister “shall, not later than 5 years after the commencement of this Act, carry out a review of the operation of this Act”. Will the five-year review be an ongoing review? I know the Minister will carry out an initial review, but I would like to know whether the review will be ongoing.
Mr. Fahey: This Bill provides, for the first time, that the Minister will have to outline clearly at the beginning of the year the amount of money that will be provided for disability services. I do not suggest that the Minister will be unable to make changes in that regard during the year. It is obvious that one cannot ring-fence any moneys. We had a debate on this matter in the Dáil. For the first time, the Minister will be compelled to outline details of the allocation of moneys in a transparent manner. The Government will allocate funding on a multi-annual basis, irrespective of the state of the economy. I shudder to think what will happen to a Minister who tries during the year to steal from the fund that was allocated to disability services at the start of the year. This Bill provides that the Minister will be able to move money if it is necessary to do so as a result of some catastrophe or crisis. It is not intended that such a transfer of funds will take place, however.
Senator Kett asked about the balance that will remain after the allocation has been made. It is obvious that Ministers will have to have regard for the other service requirements of their Departments. I refer in particular to the two big Departments of Health and Children and Education and Science. This legislation provides for a clear statement of intent to be made after the discussions on the Estimates and the budget at the start of the year. The statement of intent will set out clearly what is being provided. It is significant that the Government has chosen, as part of its disability strategy, to outline the details of the first five-year rolling programme. The Minister for Finance stated in last December’s budget that €900 million will be provided over five years. He emphasised that it will not be impossible for him to provide more money in any one of those five years.
I concur with the remarks of Senators today and on Second Stage. There have been significant increases in the amount of money provided for disability services in recent years. The relevant figure has doubled to €2.9 billion since 1987. It has been clear to me since I took up this position last September that we need to invest significant additional resources in the disability sector in the years to come. I do not doubt that there are significant gaps in service provision.
During the preparation of this legislation, I met many parents who are waiting for their children to be assessed. Such parents would like the Government to provide for early intervention and to ensure that the services which are needed are provided quickly and efficiently. Society must accept that it is not good enough that children with special needs, such as speech therapy or occupational therapy, have to wait for such services. The Bill before the House is intended to underpin the provision of such services.
We should not doubt that the investment of significant additional resources is required if we are to bridge the gaps which exist. The Government accepts that such investment is necessary, but it has clearly stated that everything cannot be done immediately. The commitment shown by the three key members of the Government — the Taoiseach, the Tánaiste and the Minister for Finance — has convinced me that the Government is determined to invest the necessary resources over the next few years. The review of this complex legislation, which was mentioned by Senator O’Rourke, is necessary in the context of that investment. Many Senators spoke eloquently in favour of justiciable rights during the in-depth debate on that issue. The Government decided to provide for a five-year review period to ensure it will be able to examine the operation of the Act throughout the next five years. I emphasise that the review will start at any time within five years of the commencement of the Act.
Mr. Fahey: ——that legislative changes are needed on foot of the review, it will be possible to make such changes. In such circumstances, I am sure the review would continue throughout the next phase of the legislation.
Mr. Fahey: I wish to inform the House that the definition of a “specified body” in section 5 of the Bill is being reviewed by the Office of the Chief Parliamentary Counsel. It is likely that an amendment will be required. I hope to present such an amendment on Report Stage.
Mr. Fahey: I introduced an amendment on Committee Stage in the Dáil to provide for a review of the operation of the legislation. The review, which I mentioned earlier, will take place within five years of the commencement of the Act. When I set the five-year timeframe, I decided to link the timing of the review with the end of the multi-annual investment programme in 2009. The amendment made in the Dáil was introduced in response to one of the key proposals of the Disability Legislation Consultation Group, which sought a review of the legislation within five years.
A review of the legislation should be undertaken within a period of less than five years. The Minister of State’s amendment is too broad. I am seeking accountability because of the amount of debate that has taken place over a number of months and in the Dáil recently on the definition of “disability”. We want to ensure the legislation will benefit the people for whom it is intended and that the definition will not exclude anyone.
The Minister of State said that nobody will be excluded by the definition provided under the legislation. However, it is important to review the matter to ensure it is working properly and that no one is excluded. The five year timeframe should be shortened. We should consult with all the groups and organisations to ensure the legislation will deliver what people want and need.
Mr. Dardis: The amendment is exactly the same as the one adopted by the Dáil, except that is being inserted in a different place. It is now in Part 1 rather than Part 2. It probably belongs more appropriately in Part 1.
There has been a difference of opinion among disability groups on the matter. There was a general desire among a number of them to have a three-year timescale. However, I have spoken to disability service providers who believe five years is a more appropriate timescale. It will take some time to assess the merits of the Act, including its deficiencies or strengths. All in all, a five year timescale is reasonable. While it states that a review must take place not later than five years, it can be done sooner. If the Minister feels after a three year period sufficient information is available, a review could be carried out at that time. I am sure there would be political pressure to ensure this would happen. A five year timescale is reasonable in all the circumstances. I am curious as to why it has changed from the first section in Part 2 to the last section in Part 1, even though I can see why that might be the case.
This is something that has already been agreed by the Dáil and it is a big improvement. While we can argue about whether the timescale should be three years or five years, it is a significant improvement that the review will take place, for which the Minister should be commended.
Mr. Quinn: My question was the same as that of Senator Dardis. I did not realise it was a Dáil amendment. I would like the Minister of State to explain why it was changed from Part 2 to Part 1, but I am sure it makes sense.
On Senator Terry’s amendment, I am not sure I support the five-year timescale being reduced to three years. However, I support paragraph (b) of the amendment, which provide that the Minister may, for the purpose of assisting him or her in making such a review under this section, consult any such organisations or representatives as he or she considers appropriate. I am sure the Minister of State will say this is how reviews are carried out and that there is consultation. I am not sure this is necessarily correct.
I support the concept of a review. All legislation should be reviewed after a certain number of years. Perhaps five years is the correct timescale. I hope the review will not be carried out behind closed doors but in consultation with those involved. I support paragraph (b) of Senator Terry’s amendment, although the Minister of State may explain that its provisions are already operative. I am sure he will say it is the intention, but the Minister of the day may not necessarily be obliged to consult.
Mr. Quinn: Paragraph (b) of Senator Terry’s amendment provides that for the purpose of assisting him or her in making such a review under this section, the Minister may consult any such organisations or representatives as he or she considers appropriate. The point Senator Terry and I are making is that we would not want the review to take place behind closed doors. We want to ensure it will be done openly and that the Minister is obliged to consult with those involved. I believe it would strengthen the Bill to include this aspect. Perhaps the Minister of State will say it will happen anyway or the Minister of the day is obliged to consult because this is what a review means. I would like to hear his views.
Mr. Kett: In order to have a review that is real and meaningful, one must give the legislation time to settle in all its elements. The Minister of State said the legislation will be monitored on an ongoing basis in any event. I am sure the voluntary bodies working in the field will be feeding information to the Minister through the various sponsored bodies in regard to how they feel it is working and what they believe should be upgraded or improved. When one considers sectoral plans and education for people involved in disability-proofing, and the environmental improvements that will come on stream for a whole plethora of areas, beginning with transport, to have a review after two or three years would probably be too soon. I support the five-year timescale. However, it should be monitored to determine what progress is being made, which I am sure will happen.
Ms Tuffy: I support Senator Terry’s amendment. Five years is too long a timescale. Even though the Minister of State said a review will take place sooner than five years and not later than five years, it could be done at the very end of the five-year period. Five years is a long time if people are frustrated because the legislation is not working for them. It would be better if the period was shorter.
The amendment relating to the appointment of a disability commissioner to consider disability-proofing and so on would be an ideal way to review the legislation. Has the Minister of State considered this option? One of the suggestions of the groups with which the Taoiseach and the Government had discussions was the appointment of a commissioner similar to that appointed under the Official Languages Act. Other appropriate commissioners might include the freedom of information commissioner. Such a commissioner would carry out an independent review.
Paragraph (b) of Senator Terry’s amendment proposes that the Minister should consult with any such organisations or representatives as he or she considers appropriate. The appointment of a disability commissioner would be even better because he or she would make an independent decision on who should be consulted in regard to the working of the legislation. Such an appointment would be welcome.
It was also suggested disability-proofing statements should be published on an annual basis by Departments. It would be much better if the review of the legislation were carried out by an independent body or person rather than by the Minister. A disability commissioner would be an ideal person to conduct a review of the legislation.
Mr. Fahey: We responded to the call for flexibility by stating in the section, “not later than five years from the commencement of the legislation”. The review, therefore, could start within three years. The intention is that whenever the review commences, it will be completed within five years. Three years is a short time, given that it will take time for the legislation to bed in. Comprehensive consultations have been held regarding the Bill, which has taken many years to draft. Given that we have provided for a review to take place not later than five years from the commencement of the legislation, the purpose of amendment No. 9 is adequately addressed.
Amendment No. 8 is technical and provides for the insertion of the section in Part 1, where it is more appropriate. The Opposition amendment would also require that the definition of “disability” be highlighted for attention; copies of the review should be laid before both Houses of the Oireachtas; the review should involved consultation with the relevant bodies; and the outcome of the review should be subject to an affirmative resolution of each House. By amending the legislation to require a review, I have taken a significant step. The Bill is the result of extensive consultation and review and there is no need to highlight a specific provision for review because the review will cover all provisions. Equally, it is not necessary to consult various bodies because this happens as a matter of course.
The discussions, which formed an extensive part of the preparation and amendment of the legislation with the DLCG, represent significant consultation. It is not necessary to specify such detail in the legislation. The disability sector is highly organised and professional in its approach and there is no danger it will fail to be involved in a review. I have offered the DLCG the option to remain in place so that the implementation of the legislation can be approached on a partnership basis. The roll-out of regulations and the setting of standards will be topics of continuing discussion between the disability sector and the Government. That is what I want and I am glad the DLCG has accepted the offer to continue to represent the sector, although we have lost one or two organisations. I have adequately addressed the amendments tabled by Senator Terry and it is not necessary to be as prescriptive as she has requested.
Ms Terry: I accept the amendment was tabled in the Dáil and I thank the Minister of State for reminding the House that the legislation has been many years in gestation. The Government has been dragged kicking and screaming to this point and people are still dissatisfied with the legislation. The Minister of State has accepted significant work must be done to appoint all the necessary professionals to provide the services required. How long will it take to appoint the necessary therapists?
I am concerned that if a five-year timeframe is provided for the review of this sensitive legislation, which has been long fought for, the pressure will not be kept on the Minister or Government of the day. The Opposition would best serve those who need services by demanding a three-year review, which would result in a great deal of pressure on the Government to deliver. I accept much must be delivered but significant work must be done to ensure services, which are absolutely necessary, are delivered.
As Opposition Members, we are not doing our duty if we let the Government off the hook and agree that it does not have to conduct a review for five years. My amendment would be better as it would provide that the review should be conducted within three years so that the Government of the day would have to deliver or own up to its failure to do so. Five years is a long time to wait for those who have not been provided with services if the legislation fails them. Reducing the timeframe, therefore, will ensure people have the right to a review within three years if they do not receive the service they want. It will ensure the Government of the day will be put under pressure to provide services. We are beginning this process and I accept it will take time because not enough qualified professionals are available to fill all the positions that will be needed. While I accept the Minister of State’s argument, it is our duty to ensure that he delivers and my amendment would help to achieve that.
Mr. Fahey: It would not because the Senator is confusing the implementation of the legislation with the provision of resources. The implementation of the legislation and its review will have no impact on the provision of resources, which will be debated annually during the Estimates and budget process. The delivery of services is a separate issue to the review of the legislation. If the legislation is inadequate, it will take two or three years for that to show up significantly. A review can commence at that stage should it be necessary. While the Senator is correct about the implementation of the legislation and resources and the appointment of therapists, it is a matter for the Estimates and the budget.
Amendment No. 10 not moved.
An Leas-Chathaoirleach: Amendment No. 11 is in the name of Senator Terry. Amendment No. 13 is consequential and may be discussed with amendment No. 11 by agreement.
Ms Terry: I move amendment No. 11:
The Bill provides for an enormous administrative backup, which will cost a lot of money and in view of this I am concerned that much of the funding allocated under the Bill will go into the administrative framework. I wonder if we are building layers of bureaucracy and whether it is necessary. Could we have the assessment officer carry out the functions of the liaison officer or vice versa? In other Departments, we have seen too many layers of staff, which ultimately does not deliver a good service. A streamlined workforce can function much better.
People must act responsibly. I am not saying that they are not acting responsibly but the Bill gives them more responsibility instead of someone being appointed as the boss and making decisions. Too many people and officers with different titles are involved. My amendment suggests we reduce these numbers and that one person could carry out the functions of at least two of the people provided for in the legislation.
Mr. Kett: This might be possible in some instances but, when considered, the assessment officer and the liaison officer are the two fundamental people involved. If I read the Bill correctly, the assessment officer is independent and the liaison officer is resource-led. The assessment officer is the person one looks to to give one’s assessment without any consideration of how much it might cost whereas the liaison officer is quite the opposite, being the person who is cost-conscious when he or she is setting out one’s service statement. A needs officer could not perform these two fundamental functions as they are completely different and at opposite ends of spectrum. For this reason, these two positions could not be intertwined.
Mr. Fahey: Senator Kett is correct in his analysis of the differing roles of the two officers. As he has stated, the assessment officer has statutory independence to identify the individual needs arising from an assessment without regard to resources. The DLCG argued forcibly that the person carrying out the assessment should be statutorily independent of the person who provides the services. On the other hand, the liaison officer must take a range of practical considerations into account. He or she is a part of the HSE structure and must consider how needs can best be met with the resources available. He or she must take into account the practical limitations that exist in the provision of services. The two roles are fundamentally different and it is in the best interests of people with disabilities that they remain separate. This is not to say that the same person could not fulfil both roles at the same time, that of the assessment officer as a statutorily independent officer and that of the liaison officer. The DLCG’s specific intention was that this distinction should exist.
Much effort has been made to ensure this does not become a bureaucratic system. In several meetings we have held with the HSE, the Department of Health and Children and the Department of the Taoiseach, the HSE was anxious to ensure this will not be a bureaucratic system but rather a seamless approach to the assessments, the work of the liaison officer, the preparation of the service statement and its implementation. In my discussions with the HSE, I am satisfied that its approach will be very person-centred and consumer-friendly and that it will be transparent and seamless. I am confident we will see all of this happening, as outlined in the regulations concerning how exactly the provisions of the Bill are to be implemented and what the roles and relationships of the people will be. I am satisfied that the Bill provides for these roles in the most effective way possible.
Ms Tuffy: How can the assessment officer be independent of the Health Service Executive if, under section 8, the officer is an employee of the executive?
Mr. Fahey: A simple answer to the question is that the assessment officer will be independent in the same way that other departmental officers, such as those in the Department of Social and Family Affairs, are statutorily independent. For example, an appeals officer in the Department of Social and Family Affairs is statutorily independent of the Department even though he or she is an employee of the Department. This statutory independence, as put in place by the Bill, gives the assessment officer independence.
Ms Tuffy: Does the Bill provide that the officer is independent?
Mr. Fahey: Yes.
Amendment, by leave, withdrawn.
Ms Terry: I move amendment No. 12:
I will read from the presentation Older People and the Disability Bill 2004 made to the Joint Committee on Justice, Equality, Defence and Women’s Rights by the National Council on Ageing and Older People in November 2004. The group stated:
What is the Minister of State’s response to the National Council on Ageing and Older People? It questioned the definition of the term “personal social services”, which can include home care, respite care, personal care and social supports.
Mr. Fahey: Part 2, section 7(1) defines a “health service” to mean “a service (including a personal social service) provided by or on behalf of the Executive”. Amendment No. 12 proposes to expand this definition by giving examples of personal social services. Personal social services, along with health services, have been defined in the Health Act 2004 to refer to those services covered by the Act and specified in its Schedule.
Personal social services encompass a wide range of services extending far beyond specific services for people with disabilities. Examples include substance abuse services, services for refugees, psychosexual counselling and services for victims of domestic violence. Examples of disability-specific personal social services, to which the Senator refers, include personal assistants, home supports, home help assistance with household tasks and home care assistants and these are provided for in the Health Act 2004. I am satisfied that the relevant services for people with disabilities are covered sufficiently by the approach taken in the Bill and that therefore this amendment is unnecessary.
Mr. Kett: If one is prescriptive about what constitutes a personal social service, as Senator Terry’s amendment advocates, one must then include everything. If one does not do this and leaves something out, then it will be assumed that the service is not covered by the Bill. For instance, under social services one can include counselling, social clubs, holidays, respite breaks as distinct from respite care and even parent and toddler groups. There are many areas where social interaction takes place which could be named, if one decides to go down the naming route. It is better to leave the wording as it is in the Bill to allow for all services to be considered, rather than being prescriptive because if a service is omitted it might be deemed not to be a social service at all.
Ms Terry: I accept what the Minister of State and Senator Kett have said. Can I take it that if an individual requires a personal social service, that his or her case will be assessed and a decision will be taken as to whether the service can be provided? The amendment proposes listing the services. If that is not done, it is to be hoped that each case would be judged on its own merits. How will the service provision be dealt with — will it be done on a case-by-case basis?
Mr. Fahey: Section 7(1) specifically refers to “including personal social services” and those services are outlined in the Health Act 2004. Personal social services, such as personal assistants, home support, home help, home care assistants and so on, are provided for and consequently will have to be catered for under the Bill.
Ms Terry: If there was a need for service that is outside of the norm and not included in the Health Act 2004, would that need be assessed on its merits or would the service have to fall within the scope of what the Minister of State has just outlined?
Mr. Fahey: Under the definition, the Bill provides for all of the health and education requirements of people with disabilities. If one adds personal social services to the other services provided for, that covers everything. I do not know of any service that is left out. This element of the Bill is covered by Part 2 only. The remainder of the Bill covers a wider brief.
Amendment, by leave, withdrawn.
Amendment No. 13 not moved.
Section 7 agreed to.
An Leas-Chathaoirleach: Amendment No. 14 in the name of Senator Tuffy is out of order as it involves a potential charge on the Revenue. Amendments Nos. 15 and 16 are related and may be discussed together by agreement.
Amendment No. 14 not moved.
Ms Terry: I move amendment No. 15:
I wish to first address the content of amendment No. 16. In a situation where an individual’s needs have not been fully met, a statement of outstanding needs that cannot be currently met should be provided. Furthermore, the statement should specify the date by which a review of the assessment should be carried out, within a period not exceeding 12 months from the date of the previous assessment or whenever there is a change in circumstances or condition, either for the person being assessed or in available resources.
This is an important provision. If we cannot provide all of the services that a person needs, a statement of outstanding needs should be drawn up and another statement should set out a timeframe for the delivery of the services to address those unmet needs. One can visualise a situation where a person is told that all of his or her needs cannot be met because of funding difficulties. It is important that we provide a system whereby a written statement is made detailing the outstanding needs and providing a timeframe within which those needs will be met. Amendment No. 15 addresses the same issue.
We should prioritise the remaining needs. If needs have not been met and funding restrictions mean that they cannot be met in the immediate term, then it is important to list and prioritise such needs. This would assist the individual and those caring for him or her. It is an obligation that should be imposed on the State, namely, that whatever needs are not met are listed and prioritised and a timeframe is provided for their delivery.
Mr. Fahey: Amendment No. 15 would require assessment reports to contain a priority list of services and the timing for their delivery. The principle contained in the Bill is that an assessment report would set out all required services and indicate the order in which they will be provided, together with optimal timescales for their delivery. I am not convinced that the proposed amendment would improve arrangements for assessment and service delivery and therefore I do not propose to accept it.
Section 8(7) outlines the contents of assessment reports, while paragraph (b)(iv) requires that the assessment report specifies the timeframe for a review. Amendment No. 16 would instead require that the report outlines unmet service needs and dates for review of the assessment to be no more than one year apart. The legislation already provides for full assessment and the timing of the reviews will be guided by the assessment report.
Section 8(7)(b)(iv) specifies that each assessment report will set out the period within which the review of the assessment will take place. The applicant can initiate a further assessment in certain circumstances under section 9(8) where there is a material change of circumstances or a material mistake of fact or where further information becomes available relating to personal circumstances. Following on from consultations early last year with the DLCG, the Government decided to expand the legislative proposals then in preparation to encompass a review of each individual service statement at suitable intervals. In response to calls for greater clarity in this regard in the Dáil on Second Stage, I tabled a number of amendments in the Dáil that changed the legislation so it clearly specifies there must be a review of the services being provided as a result of the service statement. Details of the arrangements for this process will be set out in the regulations under section 27.
Ms Terry: The Minister of State is saying that the substance of these amendments is already provided for in the legislation. He is saying that a person’s unmet needs will be set out in the form of a statement and will be prioritised. However, I am not quite clear as to whether there will be a timeframe or what the extent of that timeframe will be. Could the Minister of State clarify these two questions for me because they are important?
Mr. Fahey: For what?
Ms Terry: I am talking about a timeframe for the delivery of unmet needs because it is very important that we clarify that. If it is not clarified, it could go on for years.
Mr. Fahey: The service statement will outline the services to be provided within the resource availability of the HSE. The difference between the content of the service statement and the content of the statement of assessment are the unmet needs. They will be reported in communicative form at the end of the year so that there will be a global statement of unmet needs for all people with disabilities, which will enable us to provide for better service planning and so that a very transparent approach is taken to what are those unmet needs. There will not be any specific statement of unmet needs. This is not provided for, other than the difference between the statement of assessment and the service statement.
Ms Terry: I am not satisfied with the response from the Minister of State or the legislation as it is set out. This is a very important aspect of the Bill. If we cannot inform an individual of a timeframe for the delivery of the services which are set out in his or her initial statement, we are letting him or her down. As I understand it, we are not delivering that to the individual. We are not people when services will be delivered. It would be much better if it was done on a case-by-case basis. If one does it on a case-by-case basis, the HSE can also come up with a statement at the end of the year and identify where it has a shortfall in terms of delivery of services. It would be necessary for the HSE to do that, but the individual must also have some type of timeframe. I understand financial constraints apply but I can see someone never getting his or her service delivered if we leave this vague. This would tighten the legislation in terms of delivering services for people and letting people know when they may get or may not get their service. I ask the Minister of State to reconsider these amendments.
Mr. Kett: In a strange way, this is the kernel of what we are about here because for the first time, we will now be able to determine exactly what we are not doing for people with disabilities when the service statement is compared with the statement of assessment. This is something we were never able to do before; we were basically looking into a black hole. When this new system is up and running, we will be able to see the difference, as the Minister of State said, between service statements and assessments in the first instance.
I know that certain people will not receive what the assessment suggests they receive, which is something we will have to deal with going forward. There are a number of reasons a person might not receive the full content of an assessment, which may not be solely financial. They might be due to therapy availability. Senator Terry spoke about how difficult it will be to employ the people this Bill will deem necessary to the delivery of services. The Government took an initiative to bring about greater numbers studying occupational and speech therapy. These students are only starting to come on board now. We have 19 different nationalities working in the paramedical sector, as distinct from one five years ago. This gives some indication of how hard we have had to work in the last five years to bring about a situation where we could meet existing needs. We will now know what are the actual needs. For that reason, we must move forward carefully in this area.
I am not sure that listing requirements in order of importance is altogether achievable. I hate using the term “holistic approach” but when one is looking at the requirements of a disabled child, there is a plethora of involvements. These range from psychological assessments to physiotherapy, occupational therapy and speech therapy, which all have a different input into the approach used with the child. Listing requirements in order of importance can be quite difficult.
Ms Tuffy: I support Senator Terry’s proposals in these amendments. I share her fear that somebody could end up never receiving his or her requirements and never have his or her assessment fulfilled. The scenario she outlined is the type of issue raised by the disability groups with which the Government consulted and relates to the area I understand is called progressivity. Public services are beginning to operate in this fashion whereby a person who is reviewed by a particular public service can look up and see what has been agreed with regard to his or her needs. He or she can continue to monitor activity in this area. There is a continual review, a ticking off of what has been achieved and what has yet to be achieved and a timeframe everyone has agreed with and abides by. This approach should be adopted and the only way to ensure it is adopted is to put something like these amendments in the legislation.
Mr. Fahey: Senator Terry made the very pertinent point that there is a gap between the statement of assessment and the service statement. That unmet need can only be put right as resources become available. There is the difficulty that it will not be possible to be clear with people as to how long the service will take until it becomes available. The Government has been quite open and honest with the disability sector about this difficulty and I think it has been accepted that all services cannot be delivered forthwith. With the review procedure, if someone’s personal circumstances change or when additional resources become available, as they will each year, that person’s service statement can be reviewed. Clearly, the liaison officer can provide for the services that are required. That can be done on the basis of improving resources and as the situation changes.
The Senator is correct that it will not be possible to give clear timescales as to how long it will take services to become available for unmet needs. The Government has established its position on this issue. We have taken the practical approach of identifying the aggregate unmet needs. The idea is to plan the services to meet those unmet needs and build up the capacity to provide the services on a planned basis. That is the only practical and sensible way to meet the requirements of the individual which are in the assessment statement. As Senator Kett properly pointed out, the provision of those services will then become a matter for service planning and resource provision in coming years.
Ms O’Rourke: The Minister of State was in the Department of Education and Science when I was the Minister in that Department and when this process started. The difficulty is getting the professional staff that will be needed to meet all the requirements that will be shown up by the assessment. One can compel a Government to give a timeframe but, sadly, that timeframe might not be capable of being complied with because the staffing is unavailable.
Senator Kett mentioned that his workplace has been sourcing therapists, physiotherapists and so forth. Has the Government any long-term recruitment plan to secure the people who will be required? When these assessments are produced, people will see the vast array of needs. We know they exist but they will be revealed in a programmed, structured way and the gaps will show between what is needed and what must be provided, including the people who will provide them. Will the Minister of State give consideration to how we will attract personnel to enrol in college and train for these positions and, in turn, entice them into working in the disability sector?
Mr. Fahey: The question asked by Senator O’Rourke is being actively discussed at present. The HSE is currently preparing the regulations which will govern the implementation of this Bill. Clearly, adequate provision of professionals, such as therapists, for assessment purposes must be put in place. That is being planned at present by the HSE.
On the related question of the shortage of speech therapists, occupational therapists and so forth, the Senator will be aware that an increasing number of courses are being organised in third level colleges and universities to increase the number of places and, consequently, the number of graduates across the spectrum of therapies. In addition, an aggressive campaign is being conducted around the world by some of the service providers to attract such professionals into Ireland. We already have a number of professionals from New Zealand, Australia, South Africa, the United States and Canada. There has been a significant increase in the number of professionals employed in this country to cater for intellectual, physical and sensory disability. I am satisfied that resources are being put in place and that there is a will to increase significantly the number of professionals. However, there is still a significant requirement.
With regard to the assessment process, the intention is to utilise, as far as possible, existing resources in the sector. It is not our intention to create a new bureaucracy surrounding assessment or the assessment of individuals for the purpose of the assessment statement. It is intended that the comprehensive assessment provision already in place would form part of the mechanism for the preparation of assessment statements. This is being dealt with in detail at present and there have been several meetings between my Department, the Department of Health and Children and the Department of the Taoiseach on the necessity to roll out the regulations as quickly as possible so everybody can see what the practical implementation of this Bill will be about. When the regulations are agreed they will be placed before the Houses of Oireachtas, when there will be an opportunity to debate them.
Ms Terry: I am sorry to labour this matter but, as Senator Kett said, it is the kernel of the Bill. It is worthwhile spending time on it. Enable Ireland stated the following in a submission to the Joint Committee on Justice, Equality, Defence and Women’s Rights on 9 November 2004:
I could quote several other submissions from various organisations who have expressed their dissatisfaction with this section but I am sure the Minister of State has read them too. There is no need to quote them further. It is an important issue. Will the Minister of State reconsider my amendments?
Mr. Fahey: What was requested by Enable Ireland is provided for in the Bill. It was provided for by way of amendment. At the end of the year we will publish the full statement of unmet needs. That will be a financial figure. The Ministers concerned will publish the aggregate unmet needs, which will facilitate service planning. More importantly, it will indicate, in a transparent way, what amount of money is required to meet those unmet needs. The debate at budget and Estimates stage will focus on the significant figures of unmet needs that will emerge as soon as the Bill is implemented.
Ms O’Rourke: Will it show up the professional vacuums as well?
Mr. Fahey: It will, as part of the HSE service planning exercise. Anywhere there is a gap or vacuum will become apparent. Those vacuums are already apparent and the intention is that the service planning will plan for the provision of the services where they are inadequate or are not provided at present.
The other part of the amendment to which the Senator referred has also been dealt with. Rather than individual health boards experiencing difficulties, under the Bill the HSE will now have direct financial provision from the Department of Finance. This will remove the discrepancies which might have existed in the past between the eight different health boards. Therefore, the HSE will provide for a unitary approach to service planning and funding which did not previously exist and with which Enable Ireland was concerned.
Amendment, by leave, withdrawn.
Amendment No. 16 not moved.
An Leas-Chathaoirleach: Amendments Nos. 17 to 19, inclusive, are related and may be discussed together by agreement.
Ms Tuffy: I move amendment No. 17:
The amendment seeks to ensure that the person affected by the assessment would be consulted. As the Bill stands, this is discretionary. I see no reason for not having an obligation that the applicant would be consulted, met, interviewed and so on. This happens in many other areas of the health service. For example, community welfare officers would meet with a person when making a decision about that person’s needs. This should be a basic requirement under the Bill. The whole point of the legislation is that the person should be involved and, where possible, consulted. I urge the Minister of State to accept the amendment.
Mr. Fahey: Amendment No. 17 would require the assessment officer to carry out an interview in all cases. It is desirable that some discretion over procedures remains with the assessment officer so the individual circumstances in each case can be considered. It may be the case that an interview is simply not required. If so, to accept the amendment would only add to the bureaucracy we want to avoid. The intention of this provision is to allow flexibility to ensure an efficient system can respond to the individual situations, as appropriate. The amendment is not in the best interests of the individual.
Amendment No. 18 seeks to compel employees of the HSE to apply for an assessment of a person who appears to have disability. Section 9(4) allows employees of the HSE to seek an assessment on behalf of a person. This provision would cover a small number of cases where the person did not have a relative or guardian to act for him or her and was not able to do so himself or herself. It is appropriate that the HSE is given discretion to consider the individual’s circumstances in each case. It is also important that the person considered can decline to have an assessment. It is important the focus remains on the needs and interests of the individual rather than imposing a blanket obligation on the HSE. Consequently, I do not propose to accept the amendment.
Amendment No. 19 seeks to impose a timeframe for commencement and completion of assessment, including the arrangements to apply in urgent cases. This provision establishing time limits is already covered in the legislation. Section 9(5) requires that an assessment should commence within three months of the application and be completed without undue delay. Section 21 allows for the making of regulations to govern the procedures for assessment, including different timescales within which assessments should be carried out. It is envisaged that the regulations would establish different intervals for assessment depending on the category of disability and the age of the person. Such regulations should also allow for the prioritisation of the assessment of urgent cases, where this is warranted. I emphasise that there is a timescale, the finishing time of which will be covered by the regulations, in addition to the section of the bill dealing with the commencement time of three months.
I am satisfied these provisions adequately cover the concerns put forward by Senator Tuffy, which I accept are legitimate.
Ms Terry: The Minister of State stated the Bill provides that an assessment would be carried out within three months. Does that cover every assessment carried out within the three month period?
Mr. Fahey: It will cover those carried out within three months of the application.
Ms Terry: I accept that. However, I am not clear on the end point — the timeframe for the completion of the assessment. It is important we should have an end point or the assessment could be open-ended, which would not deliver a valuable service to anybody.
My amendment seeks to have the assessment commence immediately in urgent cases, a point the Minister did not address. What does he envisage as being the earliest point at which an urgent case would be dealt with? How would a person suffering from acute depression be assessed? We all know that depression is a serious condition from which more and more people in this country are suffering, many of whom go on to commit suicide, which is a growing problem. The Minister should tell the House the timeframe with regard to a person in need of urgent attention. A person suffering from depression could be fine for a long time but might suddenly be hit with a bout of depression. How will the structure deal with such a person?
Mr. Fahey: That will be set out in the regulations. Each form of disability will be covered by the regulations in terms of the timescale by which the assessment can be completed. The urgency of priority of particular types of disability will be provided for in those regulations. Cases of high priority will be seen immediately, as applies at present. This will be further copper-fastened in the Bill. For example, areas of early intervention, which are important for young babies or children, or areas such as manic or bipolar depression could conceivably be considered under the regulations, and the timescale could be immediate. However, that is all to be worked out in detail by the HSE and to be contained in the regulations. The Bill provides that timescales must be set down for the completion of all assessments.
Ms Terry: Why does the Minister not accept my amendment and provide for this in the Bill? We seem to be leaving a lot to the regulations. Anything we can do to strengthen the Bill has to be positive. My amendment would strengthen the Bill rather than taking away from it. As Senators we do not have an input into the regulation and can only deal with the legislation. I am therefore recommending that we accept this amendment.
Ms O’Rourke: Will the regulations list the various types of disabilities by name and the assessment period needed?
Mr. Fahey: Yes, that has been confirmed. The amendment seeks to oblige the Heath Service Executive to complete assessments within three months but this may not be practicable in every situation. For example, a situation which involves a complex condition, or combination of conditions, may require the engagement of particular skills and professions in the assessment process in order to ensure that all aspects and needs are covered. I am confident that there is no need to specify a three month timeframe. Even if it was sensible, the legislation is not the place in which to do it. It requires flexibility and the ability to be changed on an ongoing basis. We are providing for the foundation of the regulations and the period can be outlined and changed in accordance to needs.
Ms Terry: The Minister of State said that any assessment would be carried out within three months.
Mr. Fahey: I said that the assessment must commence within three months of the application. The completion timescale of the assessment will be outlined in the regulations.
Ms O’Rourke: We all share Senator Terry’s concern that there is fine intent but that the person being assessed might be let go. Does the assessment falter and fail them? I read many of the submissions which were made and this is what people are worried about. Their concern is motivated by doing good for the person and safeguarding that the applicant is assessed within a specified period. This is laid out in law. However, the Senator is talking about the end point of the assessment. One enters into an assessment period, but how long will this take? It is an important concern. As I said on Second Stage, people with disabilities will emerge from shadows into sunlight for the first time. We must ensure that the sun keeps shining.
Ms Tuffy: I wonder about the Minister of State’s response to amendment No. 18. The section’s current wording means it is up to the discretion of a Health Service Executive employee whether to arrange an assessment for a person whom he or she thinks may have a disability or is in receipt of a health service provided by the executive or both. The main contact for people covered by this section is with the Health Service Executive which has strong obligations with regard to such people. They may not have anybody else and may not be in a position to make an application themselves, nor might they have a third party, as allowed by the legislation, to make the application for them. The Health Service Executive would have a very strong duty to ensure that person was assessed. I understand why it is discretionary but many people could be left out on that basis, perhaps the most vulnerable who might not have regular contact with family members.
My amendment No. 18 proposes that the HSE employee should be obliged to apply for assessments. The reality is that people can be forgotten about. We want to make sure that everybody entitled to an assessment under this legislation gets one. This section covers a large number of people who could lose out. The HSE must be vigilant in making sure that people who are primarily in contact with its services are assessed. Is the issue dealt with in the regulations? Will the HSE receive guidelines?
Ms O’Rourke: Can the Senator explain what she means?
Ms Tuffy: Let us consider a situation whereby somebody with a disability is in a public nursing home and has no contact with anyone except employees of the Health Service Executive who are the only people who might make an application on their behalf. How do we ensure that they do not fall through the system? I appreciate why it is not compulsory, however people could lose out. The HSE employee is not obliged to apply on a person’s behalf. He or she might be the most vulnerable person and most in need of assessment but could be left out. I am especially referring to people in receipt of a health service from the HSE.
Mr. Fahey: Each person is entitled to an advocate who acts on their behalf in addition to relatives or any other concerned person or professional. We are satisfied that everybody is adequately covered. There will be an onus on those who run institutions to ensure that everybody is given the opportunity to have an assessment. The regulations will outline the procedures for assessment and how they should be carried out. It is intended that the process has a person-centred approach.
Mr. Kett: It is not possible in all cases to have a maximum period of three months placed on the finalisation of an assessment. A number of issues could arise if a small baby with developmental problems was brought for assessment. It would be impossible to complete an assessment within three months because of the child’s size and emerging problems that may come to the fore in an ongoing assessment. It is not always possible to put in place a maximum period for assessment. Therefore, we cannot do so in a Bill.
Section 9(4) states: “Where it appears to an employee of the Executive that a person may have a disability or where a person is in receipt of a health service provided by the Executive or both . . . .”. Surely this should refer to relevant employees who are in a position to make such a determination. This may be a flimsy notion. There are administrative staff in the Health Service Executive, but they would not be in any position to determine whether somebody has a disability. Should the wording not refer to “relevant employees” rather than “an employee”? A multidisciplinary judgment takes place in some assessments.
Mr. Fahey: The Bill provides for anybody to apply for an assessment.
Ms O’Rourke: That person would be an advocate.
Mr. Fahey: Any employee could decide to apply on a person’s behalf.
Ms O’Rourke: They could do so even if they had no professional expertise in a particular disability.
Amendment, by leave, withdrawn.
Question put: “That section 8 stand part of the Bill.”
The Committee divided: Tá, 29; Níl, 17.
|Brady, Cyprian.||Brennan, Michael.|
|Callanan, Peter.||Daly, Brendan.|
|Dardis, John.||Dooley, Timmy.|
|Glynn, Camillus.||Hanafin, John.|
|Kenneally, Brendan.||Kett, Tony.|
|Kitt, Michael P.||Leyden, Terry.|
|Lydon, Donal J.||MacSharry, Marc.|
|Mansergh, Martin.||Minihan, John.|
|Mooney, Paschal C.||Morrissey, Tom.|
|Moylan, Pat.||Ó Murchú, Labhrás.|
|O’Brien, Francis.||O’Rourke, Mary.|
|Ormonde, Ann.||Phelan, Kieran.|
|Scanlon, Eamon.||Walsh, Jim.|
|Walsh, Kate.||White, Mary M.|
|Bannon, James.||Bradford, Paul.|
|Browne, Fergal.||Burke, Paddy.|
|Burke, Ulick.||Feighan, Frank.|
|Finucane, Michael.||Hayes, Brian.|
|Henry, Mary.||McHugh, Joe.|
|Norris, David.||O’Meara, Kathleen.|
|O’Toole, Joe.||Quinn, Feargal.|
|Ross, Shane.||Terry, Sheila.|
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Terry and Tuffy.
Question declared carried.
Amendments Nos. 18 and 19 not moved.
Sections 9 and 10 agreed to.
Ms Terry: I move amendment No. 20:
The amendment seeks to ensure that the liaison officer will be independent in the carrying out of his or her duties, in the same way as the assessment officer will be independent. The legislation provides that the assessment officer should be independent. I would welcome the Minister of State’s comments to see how he feels about this amendment.
Mr. Fahey: It is essential that the assessment officer is independent. In the case of the liaison officer, it is equally essential that he or she is part of the executive involved in managing the needs of people with disabilities, within the practical constraints applying to them from time to time. This is in keeping with the role of the liaison officer, which is to prepare a service statement that is deliverable. The liaison officer must have a knowledge or understanding of service issues and the demands on them, as well as the related resource implications and the capacity of the executive to respond to individual needs. In light of the role envisaged for this officer in the Bill, it would be inappropriate to assign to him or her the statutory independence proposed in the amendment.
The Senator will understand it is essential that the liaison officer is part and parcel of the service delivery provision. Therefore, independence, as such, is not a very important requirement. From the point of view of a person-centred service, it is more important that the liaison officer is capable of getting the system to produce the best possible result in the service statement within the resource constraints.
Mr. Quinn: I thank the Minister of State for his explanation. Earlier in the debate, Senator Terry referred to the worries of bureaucracy and red tape. I thought the Minister of State’s answer was that those particular roles — assessment officer and liaison officer — could be the same, but perhaps I am mistaken. I may have misunderstood the Minister of State’s reply but I thought that was what he said. It seems to me that if we are talking about independence, the Minister of State just corrected what he said earlier.
Mr. Fahey: No. There are two different and distinct roles but both could conceivably be carried out by the same person. The first one, governed by statutory independence, is to be able to provide a service statement of all a person’s needs, irrespective of resources or any other constraints. The second role is service provision entailing the preparation of a service statement, which is deliverable and which must take account of the resource constraints and difficulties that are present in the HSE at any particular time.
Ms O’Rourke: Then there is the role of the liaison officer.
Mr. Fahey: That is the role of the liaison officers, who are part and parcel of the HSE. Their role is to put together the contents of the service statement, which is what will be deliverable to the person involved. That is a separate role from the assessment officer who is statutorily independent. There is good reason to keep the two separate, ensuring independence on the one hand, with a clear involvement in the system on the other.
Mr. Quinn: I am still at a loss to understand that. I can understand the explanation of the two roles and I can understand the need for the assessment officer to be independent. I have some difficulty, however, with the Minister of State’s explanation that the same person could fulfil both roles. Although I have difficulty in understanding it, I accept the point. Senator Terry was concerned that a liaison officer would be independent in the performance of his or her functions. From what the Minister of State has said, liaison officers will be independent on that basis. However, if the assessment officer and liaison officer is the same person, can he or she be independent? I will take the Minister of State’s point, although I am not quite sure I understand it.
Mr. Fahey: They are two different roles, which are separate.
Mr. Quinn: Yes but my sole difficulty was when the Minister of State said the same person could fulfil both roles.
Mr. Fahey: By and large, it is expected that there would be two different people in both roles. I was asked this question in the Dáil, and there is nothing in the Bill that precludes the same person from holding both roles. One would expect that different people will hold both posts.
Ms O’Rourke: In using the word “independent”, to which format is Senator Terry referring?
Ms Terry: I mean independent in terms of making decisions. I can see that assessment officers could also be the liaison officers, but I am talking of independence in making their decisions when drawing up their statements.
Mr. Fahey: There will be no benefit in their being independent because when drawing up service statements they must take cognisance of the situation which pertains within the HSE. A person might have an assessment of need outlining all the needs irrespective of resources. One then considers the service statement, and one must then pick and choose from the assessment statement what can be delivered in the particular year. Consequently, the liaison officer must take account of the specific constraints in terms of personnel, professional services or the amount of money made available in a particular year to that region of the HSE to provide the services. There is therefore no need for independence in the context of the provision of the service statement.
Mr. Kett: I understand the point made by the Minister of State in terms of looking at the role rather than the individual. However, if I were drawing up an assessment, I would be somewhat reluctant to draw up a service statement at the same time. It would be difficult to remove one hat and assume another in an area which will be resource-led, because the assessment will be independent of resources.
What qualification will liaison officers have? Will they have all the necessary multidisciplinary backup needed to make a judgment? If one is dissecting an assessment, and bringing it into a service statement of needs, one would want to be well informed in all aspects in order to decide what a service statement should be and what form it should take. Could the liaison officer be a speech therapist, for example, with all the necessary support behind that person in terms of occupational physiotherapy or whatever the requirements might be in order to produce a proper service statement?
Mr. Fahey: It is intended that the administrative measures will be put in place to enable liaison officers to work closely with health service management when preparing service statements and implementing their contents. The liaison officer would obviously be working with the professional health care team in the HSE in the preparation and delivery of a service statement. The officer would clearly have to have qualifications and training, but all that will need to be outlined in the standards and regulations to be drawn up.
While it is important that there would be independence in the context of the assessment officer, the thrust of the Disability Bill, when it comes to its implementation, is that it is person-centred legislation. A person with a disability should be able to have an assessment carried out quickly, efficiently and with the proper professional backup. That should then lead to the preparation and provision of the service statement, followed by the provision of the services as outlined in that statement. A significant effort is being made by the HSE to have a transparent, seamless, linked system in place, with people consulted on an ongoing basis. People will thus participate in their own assessment and in the preparation of their service statements, which will reduce the need for complaints and recourse to the appeals officer.
Amendment, by leave, withdrawn.
Acting Chairman (Mr. Mooney): Amendments Nos. 21 to 23, inclusive, in the name of Senator Tuffy, are out of order as they involve potential charges on the Revenue. Amendments Nos. 24 and 39 are related and may be discussed together by agreement.
Government amendment No. 24:
Mr. Fahey: Following consultations with the DLCG I tabled a number of amendments in the Dáil to oblige the liaison officer to review the provision of services specified in the service statement. The regulations provisions in section 21 were also amended to govern the procedures for reviews and the intervals at which reviews would take place generally or with regard to the age of the person, or the nature of the disability.
The DLCG requested that consideration be given to ensuring that the applicant, or his or her advocate, where appropriate, can be involved in that review. I am pleased therefore to table Government amendment No. 24 which obliges the liaison officer to meet with the applicant or advocate for such reviews. Amendment No. 39 will ensure that the regulation for reviews will also provide for the involvement of the applicant. This ties in with the person-centred approach of the system being put in place.
I thank the Senators who raised this issue on Second Stage. I also thank the DLCG which recently brought this matter to the notice of the Taoiseach and myself.
Mr. Quinn: I congratulate the Minister of State on this worthy amendment, which provides an involvement for the people concerned. Amendment No. 9, tabled by Senator Terry, raised a very similar point regarding the review. That amendment suggested that the Minister should, for the purpose of assisting him or her in making such a review under the proposed new section, consult any such organisations or representatives as he or she considered appropriate. The Minister did not accept the amendment but in effect has now accepted the point made. When Senator Terry’s amendment is tabled again on Report Stage, as I assume it will be, she will no doubt be reminded of the point the Minister of State has just made. I congratulate the Minister of State on his amendment, but the same spirit could apply to the one tabled by Senator Terry.
Amendment agreed to.
Section 11, as amended, agreed to.
Ms Terry: I move amendment No. 25:
This amendment aims at achieving a timeframe within which a service can be delivered. I refer to page 16 of the Bill, where it states in section 12(1):
Conforming with the thrust of what I have been saying to date, my amendment attempts to achieve a timeframe for the delivery of the service. Instead of the liaison officer handing over the service statement to a public body for the delivery of the service, I ask that a timeframe be provided during which that service should be delivered, and that the period should be no more than six weeks after receipt of the assessment report. I ask the Minister of State to consider accepting the amendment.
Mr. Fahey: The provision of section 12 was to look beyond the health and education sectors and provide a mechanism to allow relevant information to be supplied to facilitate access to other relevant services. The section is a significant and practical response to the concern of the disability sector that the Bill should foster appropriate linkages to mainstream services. Amendment No. 25 would impose a more specific obligation on mainstream providers who are contacted by a liaison officer with regard to the possible provision of services to the applicant by requesting these bodies to communicate with the applicant or representative within a maximum of six weeks.
I have sympathy with the intent of this amendment in trying to ensure prompt attention for applicants. However, as this provision applies to a range of bodies which provide a variety of services, it is not possible to be so prescriptive as to the timing of the response. That response will, in general, be governed by the arrangement for service delivery pertaining to a particular service. Therefore, I do not propose to accept the amendment.
Ms Terry: I am disappointed the Minister of State is taking this line. This is where the legislation will fail to deliver an adequate service or deliver it on time. We are leaving delivery of the service open-ended which is not a good way to deal with legislation. As I said earlier, we need to strengthen the legislation and provide for timeframes.
It all comes back to financial constraints. The problem many of the disability organisations had with the legislation was that it was driven by these constraints. I have been thinking of services I have had to access; fortunately, I have never had to access services for anybody with a disability. I was thinking of parents who try to access dental services, a minor issue, for a child. If the same type of service is delivered for those with disability as is delivered to those who try to access the dental service, God help those seeking the service. The current service is like that or worse.
I seek to ensure that we make this legislation work. We must make strong and strict guidelines and timeframes for the delivery of the service. The Bill is weakened by not including these provisions and that is the reason so many people are unhappy with it.
Mr. Fahey: I have sympathy with the Senator’s views and if I could accede to her request, I would. The difficulty lies in the fact that we cannot provide a timeframe for a number of different bodies because they operate to different conditions. If we acceded to this provision it could lead to a person being placed at the top of a queue for one type of service ahead of others waiting in a queue. The situation is more complex than simply prescribing a timescale in an effort to make the system work more effectively. I would be disposed to trying to meet Senator Terry’s requirements if it were not for the fact that we are dealing with a plethora of agencies, all of which have different regulations and guidelines. It is not possible to be so prescriptive that we can tell all the bodies concerned they must provide for a result within six weeks. That would not work.
Mr. Kett: I sympathise with Senator Terry in this regard, but I accept what the Minister of State has said. One cannot impose a timeframe where there are other imponderables such as staffing involved. For example, if when somebody is sent to a voluntary body for a particular part of an assessment, the body is short-staffed, the assessment will have to be made by another body. That puts a time constraint on the assessment. For that reason it is difficult to see how the Minister of State could be forced to put a timeframe on the provision of a service.
Ms O’Rourke: I am sure it is not sympathy Senator Terry wants, but that the provision of the service is the pervasive issue of her amendment, which reverts to the thrust of an earlier one where she sought a timeframe for the completion of the assessment. She suggests that the service should be provided within a maximum period of six weeks after receipt of the assessment reports. I envisage all the energy going towards meeting that deadline when that might not be to the good of the person assessed. It may not result in the best outcome if everybody is so caught up on calendar dates.
The fixed period would give an urgency and compulsion to the delivery of the assessment but that might impose a bureaucratic, straitjacket type procedure which would short-change the person seeking the best assessment. We must put ourselves outside the box to look at this issue. We must accept that the Bill is motivated by the best intentions to provide services to people who never had them. Now they will get them. They will not be patronised, but get their rights. If we tied people to the calendar dates, the result might be that the assessment would be rushed and not be the best due to the pressure of meeting the fixed timetable. On reflection, the Minister of State is right in this regard.
Amendment, by leave, withdrawn.
Section 12 agreed to.
Acting Chairman: Amendments Nos. 26, 27 and 28 are related and may be discussed together by agreement.
Government amendment No. 26:
Mr. Fahey: Section 13 obliges the HSE to maintain records with regard to assessment and services provided under Part 2 to inform service planning. The HSE is also required to present an annual report outlining service needs timeframes within which such services would ideally be provided and the sequence of such provision.
I introduced a Government amendment in the Dáil that will ensure the collection of specific information to enable the quantification of needs which are not being met by service provision. This information will enable the HSE to review the way in which resources are allocated to ensure maximum beneficial output can be achieved. Accordingly, the Bill as passed by the Dáil requires that the report to the Minister will be provided within a set timescale of six months and that it will also include information on the likely cost of meeting service needs.
I seek to further amend the section in this House so that the HSE will be required to furnish additional information with regard to the number of people awaiting assessments and services. These changes respond to further concerns that the DLCG expressed to the Taoiseach and I when we met the group on 25 May.
I am also pleased to table Government amendment No. 28, which requires the HSE to publish the report on assessment and service provision within a month of its submission to the Minister. This change is in response to a proposal made by the DLCG at its recent meeting with the Taoiseach and to points made to me during the Dáil debate which I have had time to consider.
These changes represent substantial development in the scope of the reporting arrangements envisaged in the Bill. The arrangements will provide a transparent means of future planning for service development and delivery to facilitate a progressive response to service needs. The revised provision will enable greater efficiency and management of resources which will be reflected in improved service levels on the ground. The Bill already captures the principles sought by Senator Terry in amendment No. 27. Indeed, the Government amendments go beyond what is envisaged by the Senator’s proposal. I express my appreciation to Senator Terry for this amendment.
Progress reported; Committee to sit again.
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