Tuesday, 21 June 2005
Seanad Eireann Debate
An Cathaoirleach: Before we commence, I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. On Report Stage, each amendment must be seconded.
As the Minister of State is aware, concern has been expressed in some quarters that a condition such as multiple sclerosis or, as the Minister of State himself put it, bipolar disorder, might not be covered by the Bill because, while the condition is enduring, its signs and symptoms may not be.
In the June edition of Insight, Ireland’s health and social affairs monthly, an article details minor changes pledged to the Bill. It states in this article that when the Disability Legislation Consultation Group met the Taoiseach, he confirmed that episodic conditions are covered in the Bill’s definition of disability. Despite what the Minister of State said last week when I asked if a condition had to be enduring, or if it would suffice if there were signs and symptoms with remissions and relapses, Senator Norris felt this amendment was advisable.
I seek the assurance of the Minister of State, Deputy Fahey, that as the Taoiseach said, conditions which are episodic come under the definition of disability. While 50% of multiple sclerosis cases are progressive, the other 50%, thankfully, are only on-and-off cases. This is why Senator Norris and I tabled this amendment.
Ms O’Rourke: Amendment No. 2 proposes to include in the definition of disability, “a person who has a physical or mental impairment which has a substantial long term adverse effect on his ability to carry out normal day-to-day activity”. Is there a list of the impairments or disabilities that are covered by the Bill? The Minister of State is shaking his head, so I take that as a “No”. Correspondence from the Multiple Sclerosis Society of Ireland received by all Members, stated emphatically those affected with multiple sclerosis are not included in the terms of the Bill. I would certainly describe a person with multiple sclerosis as impaired. Are they included in the Bill?
Minister of State at the Department of Justice, Equality and Law Reform (Mr. Fahey): The proposed amendment seeks to expand the definition of disability by adding the text to include, “a person with a physical or mental impairment which has substantial or long term effect on his ability to carry out normal day-to-day activities”. I appreciate the Senators’ intentions are to ensure specific conditions will be covered by the definition, particularly multiple sclerosis. I assure them that people with multiple sclerosis come within the scope of the definition at the point when the illness manifests itself as a disability.
For example, a person with multiple sclerosis may, for many years after diagnosis, be able to work. However, there will come a point when that person is unable to continue working, finds the hours involved strenuous or may require physical aids to continue working. This disability results in a substantial restriction in his or her capacity to carry out a profession, business or occupation.
A person may become wheelchair bound and find there are physical barriers to social participation which did not exist previously. For example, it may not be so easy for such people to visit friends because their homes are not adapted or play some of the games they played with their children before the onset of disability. A person’s disability may go into remission and progress months or years later.
The definition, because it looks at actual participation in economic, cultural and social life, responds flexibly to these changes in a person’s condition or the progress of a condition. I am satisfied the definition addresses the issues which prompted this amendment. The episodic nature of these types of conditions is covered by the definition. I am delighted to confirm that multiple sclerosis does come under the definition.
Dr. Henry: That is what I needed to hear to reassure people that episodic conditions are covered. I hope the provisions of this Bill are applied as flexibly as possible. It is important that people with a disability can get back to work when their condition improves. I am pleased to say the Department of Social and Family Affairs has improved in this regard in recent years. If people are allowed to accept an opportunity to work without losing benefits when they are in better health it can result in a significant improvement to their condition. Several patients have contacted me on this point. Just because people are disabled at some point it does not mean they will never get better. People can improve some months later and we need to be mindful of the episodic nature of some conditions because it benefits all of us if they are able to work. It also enhances an individual’s quality of life and self-esteem. I hope the Department of Social and Family Affairs will continue to interpret the situation in this way.
Mr. Fahey: I do not have a list of disabilities but disability is defined as “a substantial restriction in the capacity of the person to carry on a profession, business or occupation”. If the level of epilepsy is such that it causes substantial restriction in that regard then it is covered by the Bill. To repeat an example I gave in the Dáil, where clinical depression is curable it is not within that definition. Bipolar depression or schizophrenia, which are of a continual or recurrent nature even though they may be episodic, are included. Various levels of illness may or may not amount to disability but that will be for the medical practitioners to decide as part of the assessment process.
We discussed these amendments at some length last week but I felt it necessary to move them again on Report Stage because I was concerned that they were not accepted. If their provisions were inserted in the legislation, this would send out a strong message to people in the private sector who provide services or products to members of the public. We should do anything we can to strengthen the legislation. I accept that some private businesses might incur heavy costs if they were forced to make their buildings accessible but we should work towards that goal, which would benefit everybody. We should set high standards and strive to achieve accessibility as far as we can. I ask the Minister to reconsider and accept these amendments.
Dr. Henry: I second the amendment. Statements were made to the effect that the requirement for facilities to be provided would depend on how often disabled people would try to get into a given building. If people know they cannot get into a building they are not going to try, so Senator Terry’s amendments would encourage private bodies engaged in public business or providing services funded by the public purse to comply. I ask the Minister to accept these amendments.
Ms O’Rourke: When we dealt with these amendments on Committee Stage last week, Senator Terry argued that we should aim for the optimum result which would be that every public building be made accessible. What the Senator is seeking is an aspiration to which we would all incline. If it were put in legislation, however, then by law it would have to be done. Any private body which provides services and products to the public and any body publically appointed, funded by public money or carrying out public functions designated by law would be bound by it. We aim for an optimum result to which everybody would strive but there is a difference between an aspiration and a legislative determination.
Mr. Kett: I agree with Senator O’Rourke. If the amendments are adopted they will be part and parcel of the legislation and people must act upon them. To ask private bodies to make their building accessible even though only a minute proportion of their business relates to the disability sector would be unfair. A “one size fits all” approach is not appropriate and there is a danger that these businesses would be affected commercially, which would amount to cutting off one’s nose to spite one’s face.
Mr. Fahey: A public body is defined in section 2(1) in line with the Bill’s focus on the provision of access for specialist and mainstream public services. It covers a broad range of bodies in the public service.
As I stated last week, the Bill places significant obligations on those bodies under Part 3 in respect of accessible buildings and services and under Part 5 in respect of employment of people with disabilities. If the obligations were extended to voluntary and private bodies it would, for example, involve cinemas and shops being obliged to retrofit their premises over the next ten years. Sports centres would be obliged to present all their literature in an accessible form, irrespective of the cost and organisations such as the National Women’s Council of Ireland, which is in receipt of State support, would be obliged to ensure that any service purchased was disability-accessible.
Part 5 of the Bill establishes a statutory basis for the 3% employment target. This would be broadened to include the whole economy, including employment by contractors in publicly-funded road or building projects. We had a significant discussion in this House on Committee Stage on the need to change attitudes and mindsets, particularly in the public service. I agree and this Bill will be a significant catalyst for such a change. However, it will also help establish our public service providers as models of good practice. Over time, this will be reflected in the services provided by the private sector.
I am satisfied that the definition of “public body” reflects the focus of the Bill and I do not propose to accept these amendments. I accept the spirit and thrust of the argument in favour of extension, but as Members on the Government side have noted, it would provide an onus which could be counterproductive. There is already an onus under the equality legislation on all organisations to provide accessibility to which there has been quite a good response. However, given that we will now place significant obligations on the public sector, it will act as a role model for the private sector and I assure the House that pressure will continue to be placed on the private sector to have the provision of disability accessibility in all respects at the top of its agenda. I re-examined this issue but felt it would be counterproductive to impose this obligation on private sector organisations which may not be able to carry the burden.
Ms Terry: I am disappointed the Minister of State will not examine this issue from a broader perspective or indeed from the future. I do not see why we cannot oblige private companies which offer services to members of the public to make their buildings accessible over a number of years. I am unsure whether the Minister of State mentioned a period of ten years, but I do not see why buildings cannot be made accessible over five years. This is an attempt to make it as easy as possible for people to do so.
I accept that where there may be a disproportionate burden imposed on some buildings, there should be mechanisms developed to facilitate private bodies to overcome their financial difficulties in this regard. By not doing this, we do not make all our citizens equal, which is the purpose of this Bill. We cannot cherry-pick. Someone with a disability either has the same rights as an able-bodied person or has not. If an exception for companies is allowed, as it is here, we do not perform a service to people with disabilities. Therefore, I am disappointed that my amendments will not be accepted.
Mr. Fahey: On Committee Stage, I indicated that the definition of specified bodies was being reviewed by the Parliamentary Counsel to address technical concerns. Following this review, I now present amendment No. 5 which ensures that the definition of specified bodies is confined to bodies such as the HSE and the courts, which operate with their own financial Votes where the relevant Minister does not allocate funding. The original definition referred to Accounting Officers, which was appropriate for the purposes of bodies such as the HSE. However, I am advised that the definition is not appropriate in the case of other bodies such as Departments where the Accounting Officer is the Secretary General and where the Minister has responsibility for funds allocation. The proposed amendment takes consultation between my Department, other Departments and the Attorney General into account.
This amendment proposes that the Minister of State carries out a review of this Bill, particularly the definition of disability, within a maximum period of two years of operation or three years of enactment, whichever is the soonest. It also asks the Minister of State to conduct consultations and to lay the review before the Houses.
Much debate regarding this Bill has focused on the definition of disability and we should review it within two years of operation to ensure we have taken the correct route. It is possible that we have not accepted the correct definition and that people will be excluded. Neither the Minister of State, his officials nor I want anyone to be excluded from this legislation. A two-year timeframe is sufficient to carry out a review and examination of how well the legislation is working. As I stated, it is important that such a review should take place to ensure no one falls through the net despite all the debate. We know that some groups are unhappy and the least we can do is to ensure that all essential groups of people have been catered for under this important legislation.
Dr. Henry: I second the amendment. This amendment would be to the Minister of State’s advantage as he would be able to inform those groups which maintain there are inadequacies in the Bill that a review has been planned and that they need not worry. He could tell them the Bill will be reviewed and essential issues will be addressed. If people have been inadvertently excluded from the legislation — I am sure that as far as the Minister of State is concerned, it would be inadvertent — in two or three years’ time they will have their opportunity to state they feel they have been short-changed.
Ms Cox: I have had conversations and discussions with the Multiple Sclerosis Society of Ireland and with Senator Dooley, who is not present but has asked me to raise the point on his behalf. Under this amendment pertaining to the definition of disability and to give them a sense of security, can the Minister of State again provide clarification to multiple sclerosis sufferers that they are covered in the Bill’s definition? Although he covered this in great depth on Committee Stage, multiple sclerosis sufferers fear the definition is not sufficiently broad to cover them because they regard themselves as having an enduring condition which may go into remission for many years, but which is incurable. I take this opportunity to ask the Minister of State to clarify that point.
Mr. Kett: The Minister of State has covered this issue in the Bill in that he said he will review the legislation within five years, commencing within two years. We will need that amount of time, if not the five years, to see whether this is kicking in. I am sure the Minister of State will look at it on an ongoing basis, not to mention review it after a certain number of years. The review could take place within the two to five year period. The Minister of State has provided sufficient time to review it in a meaningful way.
Ms Tuffy: Amendment No. 23 in my name was disallowed. It proposed something sought by groups within the DLCG, namely, that there should be disability proofing statements and a disability commissioner. A disability commissioner would do the type of work envisaged by Senator Terry’s amendment in that there would be consultation with the different parties and continuous assessment. The disability commissioner could carry out the type of review the Minister of State has in mind, whether in three or five years. He or she would be the ideal person to carry out that type of review, to look at all the aspects and to do so in an independent way as opposed to the Minister of State carrying out a review of the legislation in five years. Will the Government consider the proposal of the various groups that a disability commissioner be appointed to monitor the legislation?
Ms O’Rourke: The Bill allows for a review within a five year timespan. Will the review be ongoing? Is there any guarantee that the review would begin after two years and continue on? I understand the Government means business when it says there will be a review after five years. Each day we are assailed by terrible things which are happening, including MRSA, the particular nursing home about which there has been much discussion lately and other matters which are raised as “scandals”. If something quite abhorrent happened in the context of the operation of this Bill which demanded an immediate review and assessment of the care provided to a particular group, will the Government say it is only three years since the enactment of the Bill and it has not had time to carry out a full review? Will the Minister of State assure us the review process will be ongoing and that it can be interrupted at any time if there is a need for such an intervention if, for example, something happens which affects a group of people and there is an outbreak of much dispute, fear and condemnation?
Mr. Fahey: The amendment I brought forward on Committee Stage in the Dáil to allow for a review of the operation of the Bill’s provisions within five years of commission covers the amendments tabled. The five year timeframe links the timing of the review with the end date of the multi-annual investment programme of 2009. The Government amendment was in response to proposals made by the DLCG which sought a review within three years of enactment. On Committee Stage in this House last week, a further amendment was agreed to which placed that section in Part 1 of the Bill.
As I stated last week, the Bill, as amended in the Dáil, would allow the review to take place not later than five years from commencement of the legislation. A review within a shorter time is not ruled out if it becomes necessary. Indeed, I stated that it would be the intention that the review would be completed within five years and I believe this to be a very reasonable approach. I take on board the points made by Senator Terry but when one takes all matters in account, if it is found there are major issues of a negative nature in the first two years of the implementation of the legislation, one could take it that a review would start at that stage. It could be an ongoing review, which could take time, or a review which could take place very quickly if it was found that legislative change was necessary. However, I am confident that will not be necessary. The scope of the Bill is such that much of its implementation will be provided for in the regulations. It will be possible at any time to amend the regulations or to change standards if it is found necessary. We were very flexible in respect of the amendment we tabled in the Dáil and I understand people in the sector are satisfied with it.
I wish to respond to Senator Cox who spoke on behalf of Senator Dooley. On the last occasion Senator Henry said an enduring disability means that the underlying condition is enduring and not one that must have symptoms or signs of the condition at the time. I confirm that is the case, that is, that people so described by Senator Henry are included in the definition of the Bill and, consequently, multiple sclerosis is so included.
Ms Terry: On the face of it, I accept what the Minister of State said. The legislation states that a review must be carried out within five years but that it too broad. I am disappointed and I hope we will not regret this. I accept the Minister of State’s word that if issues or problems arise at an early stage, the review would start immediately but there could be a Minister from another party within, or after, the next two years. We must, therefore, ensure whoever is the Minister of the day will feel the same way. It is not good enough for me to accept the Minister of State’s point of view and that he would initiate a review at an early stage. The legislation must ensure we protect those we seek to protect. If we allow this through, it will be a flaw in the legislation.
|Brady, Cyprian.||Brennan, Michael.|
|Callanan, Peter.||Cox, Margaret.|
|Feeney, Geraldine.||Fitzgerald, Liam.|
|Glynn, Camillus.||Hanafin, John.|
|Hayes, Maurice.||Kenneally, Brendan.|
|Kett, Tony.||Kitt, Michael P.|
|Leyden, Terry.||MacSharry, Marc.|
|Mansergh, Martin.||Minihan, John.|
|Mooney, Paschal C.||Morrissey, Tom.|
|Moylan, Pat.||Ó Murchú, Labhrás.|
|O’Brien, Francis.||O’Rourke, Mary.|
|Phelan, Kieran.||Scanlon, Eamon.|
|Walsh, Jim.||Walsh, Kate.|
|White, Mary M.|
|Bannon, James.||Browne, Fergal.|
|Burke, Paddy.||Burke, Ulick.|
|Coghlan, Paul.||Cummins, Maurice.|
|Feighan, Frank.||Finucane, Michael.|
|Hayes, Brian.||Henry, Mary.|
|McDowell, Derek.||O’Meara, Kathleen.|
|O’Toole, Joe.||Phelan, John.|
|Ross, Shane.||Ryan, Brendan.|
|Terry, Sheila.||Tuffy, Joanna.|
Mr. Fahey: Amendments Nos. 7 and 21 are technical amendments which relate to the reference in the Bill to personal advocates assigned by Comhairle to assist, support and represent persons with a disability to apply for access services under Part 2 in addition to social services generally. As the Comhairle (Amendment) Bill 2004 has yet to be enacted I have been advised by the Parliamentary Counsel that we cannot now refer to that legislation in the Bill. Amendment No. 21 achieves the same effect as the references to the Comhairle legislation. Moreover, the amendment will ensure consistency in language regarding the assignment of personal advocates.
This is a very important part of the Bill and my amendments would help to strengthen the legislation. When an assessment report is issued, the subsequent service statement can only come into effect if the necessary funding is available to meet the requirements of the statement. A service statement may be prepared without the services being provided owing to lack of funding. To ensure that at the very least people get some services I am asking that the most important services be listed.
A person may have a requirement for physiotherapy and speech therapy, with the physiotherapy being more important. However, for largely financial reasons the speech therapist might be available and that service might be provided first. We should list the most important services for any individual and within a given period we should try to deliver those services. The period, which should be no more than 12 months, should be reviewed to see how we are doing in fulfilling the requirements of the service statement. If some services are provided and others are not we must list the outstanding needs of the person. We need to continue to review the needs to ensure they are met within a reasonable period. My amendment suggests that the review should be carried out every 12 months. If we do not review an individual’s circumstances, requirements could slip through the net, as has happened in recent times. My amendments would help to ensure a link between the assessment report and the delivery of the service statement and to prioritise the needs of an individual leading to the delivery of the most important services. We then need to consider how to deliver the outstanding services within a reasonable timeframe.
Ms Tuffy: I second the amendment. My amendment No. 13, which is very similar in its objective, deals with the same issue regarding the service statement rather than the assessment. It was ruled out of order, as it would impose a potential charge on the Revenue. I do not question those who made the ruling as I realise they must do so. However, there is a thin line between the requirements under Senator Terry’s amendment not imposing a charge on the State and mine imposing a charge on the State. In effect both our amendments raise the same issue.
I agree with the points made by Senator Terry. While the Minister of State has said we will have an aggregate statement on unmet needs of people, it will not deal with the individuals’ unmet needs. Senator Terry’s amendments try to address these unmet needs, as would have my amendment No. 13. In many cases it is speculative as to whether these provisions would impose a charge on the Revenue. Having a general statement, as proposed by the Minister of State, is anonymous and does not have the same impact as considering the unmet needs of an individual, which should be delivered in a certain timeframe. It would be depressing to see a general statement of unmet needs and to know that the needs of some will not be addressed by a statement of that kind.
The purpose of the amendment is also to try to provide a forum for one of the five issues raised by the DLCG, as well as those groups that left the DLCG due to the fact that all five issues were not addressed. The issue is that services identified in the assessment of need for an individual must be provided within a reasonable and agreed timeframe.
Mr. Kett: I think Senator Terry expressed a doubt that the service statement may not be met, as distinct from the assessment. My understanding is that the service statement is resource led and consequently, the service statement, when initiated, will be met. That might not always be possible, although I agree that the principle is a good thing. It might be a good thing to prioritise. I am thinking of someone sitting in a case conference with a multidisciplinary team with parents. A parent, with the best will in the world, may want something different for their child than the multidisciplinary team. The parent may want, as a priority, that the child walks to the best of his or her ability, whereas a multidisciplinary team may prioritise special seating. The amendment refers to meeting the needs of the applicant and the period of time required by the person or persons for the provision of each of these services. That does not allow for the viewpoint of a parent, as suggested in subsection (2). The parent has a major role to play in this, but is omitted in the scenario that I described above.
Dr. Henry: Senator Kett makes an interesting point. He and I have often taken part in case conferences about patients. The thrust of Senator Terry’s amendment is very important because those running the case conferences may not always be the best people to decide the applicant’s greatest needs. We also have a worry about resources and these amendments show a great deal of respect for the person who is being assessed. This is why I would like to support both amendments, because respect for the person and for the person’s wishes is very important.
As Senator Kett pointed out, the parents of a child may give different priorities than those who are involved in the case conference. However, those of us involved in the case conferences are not living at home with the child. Parents might have a more realistic idea on what would make the child’s life better, as well as what would make their life more bearable.
Mr. Fahey: Amendment No. 8 would require assessment reports to contain a priority list of services and the timing for their delivery. The principle already established in the Bill is that the assessment report would set out all required services and indicate the order for their provision, together with the optimal time scales for their delivery. I am not convinced that the amendment proposed would add to that principle or improve arrangements for assessment and service delivery. In addition, those carrying out the assessment will be required to take note of the applicant’s views about his or her needs or preferences. This will also inform the consideration of the assessment. I am satisfied that the outcome of the assessment will reflect the approach sought by the Senators and therefore, I do not propose to accept this amendment.
Section 8(7)(b)(iv) requires that the report specifies the time frame for the review. Amendment No. 9 would delete this provision and would require that the report outlined unmet service needs and dates for the review of the assessment to be no more than one year apart, or where there is a change in circumstances or available resources. The legislation adequately provides for further assessments. The timing of the reviews would 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 regulations will guide different periods for such reviews, taking account of important factors such as the age of the applicant and his or her disability. The regulations will be subject to consultation before they are finalised, so that there will be ample opportunity for input by the relevant interests, including this House.
Section 9(8) allows the applicant to initiate a further assessment where there is a material change of circumstances or a material mistake of fact, or where further information becomes available relating to personal circumstances or services. The assessment will be independently undertaken without regard to resources in accordance with quality standards and will identify needs. Senator Kett is correct in that regard and it would not be possible for the report to specify which needs may or may not be met at that point in the process. The service statement will contain the services to be made available within the resource restraints which apply at the particular time. Consequently, there will not be any services included in the reports which cannot be delivered. Where circumstances change, the service statement will change to reflect that.
Ms Terry: I will not press the amendment and I hope that it works out in line with what the Minister of State is saying. I do not want people to have to fight their way back into the service when finance is not available. When finance becomes available, the Minister of State stated that the service can be provided again. How difficult will it be for people to ensure that when money does become available, they can get the service provided? It seems to be imposing an unnecessary burden on individuals who care for someone to ensure that the service is delivered.
Mr. Fahey: There will be flexibility with regard to service statements. As further resources become available, a service statement can be added, or if personal circumstances change, a service statement can be added. When it comes to the reality of how this will operate, on the basis of it being a person centred seamless approach from the HSE, then a person can expect to have a continuous relationship with the HSE on the delivery of services as resources become available. We want a practical, sensible, person centred approach to this whole issue. The HSE is carrying this out in the preparation of the regulation. We do not need to be too prescriptive in the legislation to ensure that the objectives of the Senator are met.
Mr. Fahey: Amendments Nos. 10 and 11 are technical amendments which recognise that under section 8(8) the applicant will be invited rather than required or obliged by the assessment officer to attend a meeting.
Mr. Fahey: As I promised Senator Terry last week when she noted her concern to identify unmet service needs, I have reviewed the provisions in section 13. Notwithstanding Senator Terry’s amendment on the matter, I am pleased to present amendment No. 14 which requires the inclusion of additional data in the HSE report to provide a fuller picture of those with unmet needs. The amendment will ensure the report delivers a profile of the persons who are not receiving all of the services identified in their assessments. The provision will help to identify emerging trends in problem areas and facilitate the development of a strategic response. The amendment will add to a 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 real needs. The revised provisions will facilitate greater efficiency in the management of resources which will be reflected in improved service levels on the ground over time.
Ms Tuffy: While I welcome the statement to be made by the Department each year, it will not be enough for individuals with unmet needs. It will not be of much consolation for people to see themselves included in a category of persons with unmet needs if there is no indication as to when their individual needs will be met. It is this state of affairs that Senator Terry and I have tried to address in amendments Nos. 8, 9, 13 and 15.
Ms Terry: I thank the Minister of State for making this improvement to the Bill. We must ensure that unmet needs arising in each year are reviewed on an annual basis to ensure we keep up with service delivery requirements. We must ensure the staff and facilities required are available to supply the services and products people need. I welcome the improvement of the Government’s amendment since last week as any provision in this area is helpful.
Mr. Kett: It will be of help in regional areas to publish a profile of needs. If one needs to know how many people with spina bifida live in the midlands, one will be able to establish the statistics from the information which will now be made available. Going forward, the statistics will be manifestly helpful in establishing funding requirements in various regions. We will have concrete knowledge of the holes in the provision of services across a wide range of disabilities, which can be nothing but helpful.
Ms O’Rourke: The elaboration and extra information for which the amendment provides will not only help to determine needs but inform future strategy. The number, age and category of persons with disability will be supplied concurrently rather than gathered to ensure that when a strategy is prepared for the provision of, for example, speech therapists, it is immediately apparent what is required and when. The inclusion of information on ages of persons with disability means it will be possible to identify immediately at what level services will need to be delivered.
Mr. Fahey: Unmet aggregate needs will be identified and the HSE will be required to outline all identified needs to indicate the periods of time ideally required to provide services, the sequence of provision and the estimated costs involved. The amendments will facilitate a detailed analysis of service provision and areas of unmet need. The data will be available to the public in published reports.
The approach in the Bill will provide a clear strategy for informed policy development and effective use of investment to benefit individuals. It ensures a transparent process which, coupled with increased investment, will have long-term benefits for the disability sector.
I seek the inclusion of amendment No. 15 in section 13 but require the Minister of State’s advice. Does my amendment comply with the existing provisions of the Bill and is the Minister of State already covering what I am seeking?
Ms Terry: If so, it would be better to make the provision I have requested in section 13 rather than in section 11, whether through my amendment or that of the Minister of State. It is in section 13 that we demand the HSE should keep records and provide the information we have requested. In that context I am concerned that my amendment would be better placed in section 13; perhaps the Government could facilitate that by providing its amendment under this section.
Mr. Fahey: We have reviewed the situation and are satisfied that Government amendment No. 14, which will require that additional data is included in the HSE report, will give a fuller picture of those unmet needs. This will ensure that it will deliver a profile of the persons who are not getting all the services identified in the assessment. Amendment No. 14 will insert a new paragraph (e) in section 13(1).
Ms Tuffy: It is a fundamental omission from the Bill that one cannot appeal the contents of the assessment. The assessment is the most fundamental right given in the Bill. One can appeal other aspects of the proposed legislation, such as the determination by the assessment officer that a person does not have a disability and so on. The contents of the assessment are key. It is particularly important that one would be able to appeal the contents of the assessment because one cannot appeal this to the courts, which I believe is wrong also.
Planning permission is a case in point. If one applies to a local authority for planing permission and one is not happy with the decision, it can be appealed to An Bord Pleanála. One cannot appeal further to a court on a substantive issue but one can appeal to An Bord Pleanála about the substantive issue of the planning application, planning permission and so on. The fact that the right of court appeal has been closed off makes it even more important that one would have an opportunity to go to an appeals officer about the contents of an assessment. This, in addition to the lack of appeal on the content of the assessment to a court of law — which I also consider a questionable omission from the Bill — is something that may pose a problem in terms of the constitutionality of the proposed legislation. That is the reason I have tabled the amendment.
The contents of the assessment was an issue that was very important to the three groups that withdrew from the DLCG. One of those groups, NAMHI, contacted me in the course of the Committee Stage debate in this House. It was unhappy with the fact that the Minister of State mentioned that just one or two groups withdrew from the DLCG when in fact it was three groups — the Forum of People with Disabilities, the National Parents and Siblings Alliance and NAMHI. They had substantial concerns about the Bill and withdrew from the process because they were not happy with it. They respect the decision of the groups that remained but the fact is that three out of five groups withdrew from the DLCG. The Minister of State’s description made it appear a lot less significant than it, in fact, was.
Mr. Kett: I share some of Senator Tuffy’s concerns on this issue. The Minister of State based his Committee Stage argument on the fact that the assessor would be wholly independent, which I accept. However, I am concerned about what would happen in the case of an assessor being incompetent and making a hames of an assessment for one reason or another. This brings me to the issue of the skills of an assessor or assessment team. From where will the assessors be recruited? I would hope they would be drawn from the corps of people that work in this area and that they would not be people from the HSE who have no skills in the disability sector. I hope that when we begin to recruit assessors and liaison officers, especially assessors, they are drawn from the corps of people who work within the system and know the disability sector.
Would it be possible for a liaison officer to be an administrative person? Liaison officers would merely fulfil the terms of the assessment in so far as they could. Would they require competence to make a judgment on an assessment, to draw it down into a service statement or could this be done by a person with administrative skills as there would be a financial implication?
Mr. Fahey: Amendment No. 16 seeks to insert a further ground of complaint in regard to the contents of the assessment. As I stated last week, any person who considers he or she has a disability can apply for an assessment, as outlined in section 9(1). Those who apply for an independent assessment will therefore receive one. Otherwise, there is a ground for complaint under section 14(1)(a).
In regard to the content of the assessment report, I am satisfied it will reflect the outcome of an independent assessment process. It would be carried out without regard to the cost of providing the services identified and in accordance with standards devised by the new independent body, HIQA, the health information and quality authority. The HIQA interim board is in place since earlier this year when it was launched by the Tánaiste. I am confident that this new and independent body will play an important role in supporting a quality assessment delivery. If standards are not complied with, there are grounds for complaint by an applicant and the HSE can be instructed to conduct a further assessment.
The standards will relate to the content of the assessment among other things. They will play an important role in ensuring a proper level of quality standards across the spectrum so that everybody can expect to be treated equally. The reassurance for applicants is that all assessment officers will be required to work to the same set of standards so there should be no regional or local variations.
The assessment will be undertaken by persons with relevant expertise and they will be required to note the applicant’s views concerning needs and preferences for services. I assure Senator Kett that assessment officers will be appropriately qualified and trained. That is not to say that existing personnel within the HSE sector would not be capable of carrying out this work. Clearly there will be training requirements but, by and large, I am satisfied there will be appropriately qualified people within the HSE to carry out both the assessment and the service statements.
I have considerable sympathy with the views expressed on Committee Stage in regard to this amendment. I share the Senator’s concerns that there should be safeguards to ensure the assessment is accurate and objective. However, I must insist that the Bill as constructed already deals with this issue. I reiterate that the whole ethos of the assessment process would be to try to address the needs of individuals to their satisfaction. Consequently, I do not consider there is a need for an amendment of the nature proposed and do not intend to accept the amendment.
Mr. Fahey: The Disability Bill, as published, includes a provision that allows the Health Service Executive or head of the education service provider to refuse to implement the recommendation of a complaints officer. In such cases, the opinion would be set out in writing and could be appealed by the applicant. I was pleased to table an amendment in the Dáil which deleted that provision. Government amendments Nos. 17, 18 and 19 are technical amendments that seek to remove text that refers to the deleted provision and is therefore no longer relevant.
Mr. Fahey: When the Bill was published, there was a provision therein that allowed the Health Service Executive or head of the education service provider to refuse to implement the recommendation of a complaints officer.
Mr. Fahey: It was included to provide a further requirement such that if the CEO of a health board, for instance, did not feel, for any of a variety of reasons, that he could implement the decision of the complaints officer, he could refuse to do so. We decided to remove this provision completely to make the legislation more transparent and ease the bureaucracy. Consequently, Government amendments Nos. 17, 18 and 19 are simply technical amendments that remove text that refers to the deleted provisions.
I tabled this amendment because the legislation does not allow an appeal to the High Court, except on a point of law. The amendment seeks to allow for an appeal to the District Court from a decision of the appeals officer. Ultimately, people should have recourse to the courts to vindicate their rights. It is as a last resort that most people go to court to do so and they do not take it lightly. The provision, as it stands, should not be in the legislation and therefore I am tabling this amendment. I have made this point previously.
At least one group has written to me questioning the constitutionality of the legislation in that it does not afford people the opportunity to appeal decisions under the legislation to court. I, too, wonder about this.
Mr. Fahey: The amendment would allow for an appeal to the District Court on the facts established by the appeals officer. Section 20, as it stands, provides that an appeal to the court would arise only on a point of law to the High Court. This approach is consistent with that in other statute-based appeals systems, such as those pertaining to planning and social welfare. It provides the advantages of a system of appeals that is independent and transparent and has strong statutory powers. It allows people to take an appeal with full confidence in due process and a fair hearing and without incurring the cost of a court case. The proposed amendment would undermine the strength of the appeals officer by instituting a third layer of review in addition to the complaints and appeal.
I am aware that the Opposition favours general redress in the courts. I do not hold this view. The Bill allows access to the Circuit Court for enforcement of the appeals officer’s determination, a resolution arrived at through mediation or recommendation of the complaints officer. The appeals process in the Bill, as it stands, provides a user-friendly and acceptable form of redress for people with disabilities and their families.
|Bannon, James.||Browne, Fergal.|
|Burke, Paddy.||Burke, Ulick.|
|Coghlan, Paul.||Cummins, Maurice.|
|Feighan, Frank.||Finucane, Michael.|
|Hayes, Brian.||Henry, Mary.|
|O’Meara, Kathleen.||O’Toole, Joe.|
|Phelan, John.||Ross, Shane.|
|Terry, Sheila.||Tuffy, Joanna.|
|Brady, Cyprian.||Brennan, Michael.|
|Callanan, Peter.||Cox, Margaret.|
|Feeney, Geraldine.||Fitzgerald, Liam.|
|Glynn, Camillus.||Hanafin, John.|
|Kenneally, Brendan.||Kett, Tony.|
|Kitt, Michael P.||Leyden, Terry.|
|MacSharry, Marc.||Mansergh, Martin.|
|Minihan, John.||Mooney, Paschal C.|
|Morrissey, Tom.||Moylan, Pat.|
|Ó Murchú, Labhrás.||O’Brien, Francis.|
|O’Rourke, Mary.||Phelan, Kieran.|
|Scanlon, Eamon.||Walsh, Jim.|
|White, Mary M.|
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