Mental Health (Anti-Discrimination) Bill 2013

AN BILLE SLÁINTE MHEABHRACH (IN AGHAIDH IDIRDHEALÚ), 2013

MENTAL HEALTH (ANTI-DISCRIMINATION) BILL 2013

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Mar a tionscnaíodh

As initiated

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ARRANGEMENT OF SECTIONS

Section

1. Short title and commencement.

2. Interpretation

3. Disqualification for membership of Dáil Éireann

4. Person ineligible to be called for jury service

5. Disqualification of company directors

6. National Lottery prizes

7. Non-discrimination of persons in interpretation of law

8. Offers of Insurance

9. Terms in breach of Act void

10. Offers of credit

ACTS REFERRED TO
Mental Health Act 2001

AN BILLE SLÁINTE MHEABHRACH (IN AGHAIDH IDIRDHEALÚ), 2013

MENTAL HEALTH (ANTI-DISCRIMINATION) BILL 2013
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BILL

entitled

AN ACT TO MAKE PROVISION, IN THE CONTEXT OF EVIDENT AND PERSISTENT UNFAIR DISCRIMINATION AGAINST PERSONS WHO HAVE BEEN DIAGNOSED WITH A MENTAL ILLNESS OR WHO HAVE IN THE PAST BEEN DIAGNOSED WITH A MENTAL ILLNESS, FOR THE PROTECTION OF CERTAIN CLASSES OF PERSONS HAVING BEEN DIAGNOSED WITH A MENTAL ILLNESS AND TO PROHIBIT THE DISCRIMINATION AGAINST SUCH PERSONS AND TO PROVIDE FOR THE GRANT OF CERTAIN PROTECTIONS IN MATTERS OF CONTRACT LAW.

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PRELIMINARY AND GENERAL

Short title

1.—(1) This Act may be cited as the Mental Health (Anti-Discrimination) Act 2013.

(2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions.

Interpretation

2.—(1) In this Act:-

“ consumer ” means a natural person (whether in the State or not) who is acting for purposes unrelated to the person’s trade, business or profession;

“ contravene ”, in relation to a provision, includes fail to comply with the provision;

“contract of insurance ” means a contract whereby a person called the insurer agrees in consideration of the money paid to him by another person called the insured to indemnify the latter against loss resulting to him or her or it on the happening of certain events.

“credit institution” means a person authorised in the State to accept deposits or other repayable funds from the public and to grant credit on its own account:

“decision-making ability” means the functional ability of a person to make a decision.

“mental health condition” means a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.

(2) In this Act:-

(a) a reference to any enactment shall, unless the contrary otherwise requires, be construed to a reference to that enactment as amended or extended by or under any subsequent enactment including this Act,
(b) a reference to a section is a reference to a section of this Act, unless it is indicated that reference to some other enactment is intended, and
(c) a reference to a sub-section, paragraph and/or subparagraph is a reference to the subsection, paragraph and/or sub-paragraph of the provision in which the reference occurs unless it is indicated the reference to some other provision is intended.

Disqualification for membership of Dáil Éireann

3. (1) Section 41 of the Electoral Act 1992 (i) is hereby amended by substituting “A person who has been found to lack “decision-making ability” required to fulfil his or her duties as a member of Dáil Éireann” for the words ‘is of unsound mind’ .

(2) Section 42 (1) (a) is hereby amended by substituting the words
“A person who has been found to lack “decision-making ability” required to fulfil his or her duties as a member of Dáil Éireann” and such lack of decision making ability is likely to be permanent”.

for the words

‘incurs an incapacity or disability referred to in section 41’ .

Persons ineligible to be called for jury service

4. Schedule 1, Part 1, Subsection 3 of the Juries Act 1976 is hereby amended by deleting the words

“A person who suffers or has suffered from mental illness or mental disability and on account of that condition either—
(a) is resident in a hospital or other similar institution, or
(b) regularly attends for treatment by a medical practitioner.”

Disqualification of company directors

5. Schedule 1, Table A, section 91 (d) and Schedule 1, Table C, section 39 (d) of the Companies Act 1963 is amended by substituting the phrase “becomes of unsound mind”; where it appears, for “lacks decision-making ability necessary to fulfil his or her functions as a company director”.

National Lottery prizes
6. Section 28 (2) (b) of the National Lottery Act 1986 is amended by the deletion of
“or of unsound mind”.

Non-discrimination of persons in interpretation of law

7.— In construing a provision of any enactment or rule of law,

(a) that is obscure or ambiguous, or
(b) that on literal interpretation would give rise to a discriminatory effect on the grounds of the existence of a mental disorder

a court shall interpret that provision so as not to impair the rights of any person solely on the basis that the person is experiencing or has in the past experienced a mental health condition.

Offers of indemnity

8. (1) An insurer shall not, in deciding whether to indemnify or offer to indemnify a consumer require the consumer to disclose his or her medical history, if any, in respect of mental illness and, if a matter within its own knowledge or otherwise known to the insurer shall not take knowledge of prior mental illness into account in exercising its commercial judgment

(2) A person who contravenes subsection (1) shall be guilty of an offence and shall be liable on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both

(3) It shall be a defence for a person charged with an offence under subsection (2) consisting of a contravention of subsection (1) to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (1).

(4) Where, on the sworn information of a member of the Garda Síochána not below the rank of sergeant, a judge of the District Court is satisfied that there are reasonable grounds for suspecting that evidence of or relating to an offence under subsection (2) is to be found at a place specified in the information, the judge may issue a warrant for the search of that place and any persons found at that place.

(5) A warrant issued under this section shall authorise a named member of the Garda Síochána alone or accompanied by such other members of the Garda Síochána and such other persons as may be necessary—
(a) to enter, within 7 days from the date of the warrant, and if necessary by the use of reasonable force, the place named in the warrant,
(b) to search it and any persons found there, and
(c) to seize anything found there, or anything found in the possession of a person present there at the time of the search, which that member reasonably believes to be evidence of or relating to an offence under subsection (3).

(6) Any person who—
(a) obstructs or attempts to obstruct any member of the Garda Síochána acting in accordance with a warrant issued under subsection (4), or
(b) fails or refuses to comply with a requirement under this section,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both.

(7) A member of the Garda Síochána may arrest without warrant any person whom the member reasonably suspects of having committed an offence under subsection (6).

(8) Where an offence under this Act has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of the person being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(9) Where the affairs of a body corporate are managed by its members, subsection (8) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

(10) In this section “place” includes any dwelling or any building or part of a building.

Terms in breach of Act void

9.– Any term in a contract of insurance or for credit or any representation or warranty obtained from a consumer in contravention of sections 8 or 9 shall be unenforceable as against the consumer but the contract of insurance shall otherwise remain in force.

Offers of credit

10.—(1) A credit institution shall not, in deciding whether to enter into a contract for the provision of credit or to offer credit to a consumer shall not require the consumer to disclose his or her medical history, if any, in respect of mental illness and, if a matter within its own knowledge or otherwise known to the credit institution shall not take knowledge of prior mental illness into account in exercising its commercial judgment

(2) A person who contravenes subsection (1) shall be guilty of an offence and shall be liable on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both

(3) It shall be a defence for a person charged with an offence under subsection (2) consisting of a contravention of subsection (1) to show that he or she took all such steps as were reasonably open to him or her to ensure compliance with subsection (1).

(4) Where, on the sworn information of a member of the Garda Síochána not below the rank of sergeant, a judge of the District Court is satisfied that there are reasonable grounds for suspecting that evidence of or relating to an offence under subsection (2) is to be found at a place specified in the information, the judge may issue a warrant for the search of that place and any persons found at that place.

(5) A warrant issued under this section shall authorise a named member of the Garda Síochána alone or accompanied by such other members of the Garda Síochána and such other persons as may be necessary—
(a) to enter, within 7 days from the date of the warrant, and if necessary by the use of reasonable force, the place named in the warrant,
(b) to search it and any persons found there, and
(c) to seize anything found there, or anything found in the possession of a person present there at the time of the search, which that member reasonably believes to be evidence of or relating to an offence under subsection (3).

(6) Any person who—
(a) obstructs or attempts to obstruct any member of the Garda Síochána acting in accordance with a warrant issued under subsection (4), or
(b) fails or refuses to comply with a requirement under this section,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both.

(7) A member of the Garda Síochána may arrest without warrant any person whom the member reasonably suspects of having committed an offence under subsection (6).

(8) Where an offence under this Act has been committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of the person being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person as well as the body corporate shall be guilty of an offence and be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(9) Where the affairs of a body corporate are managed by its members, subsection (8) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.
(10) In this section “place” includes any dwelling or any building or part of a building.

AN BILLE SLÁINTE MHEABHRACH (IN AGHAIDH IDIRDHEALÚ), 2013

MENTAL HEALTH (ANTI-DISCRIMINATION) BILL 2013

EXPLANATORY MEMORANDUM
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Purpose of Bill
The purpose of the Mental Health (Anti-Discrimination) Bill is to contribute to the elimination of discrimination against people who have been diagnosed with a mental health condition, by addressing existing legal provisions on the statue book.
Main provisions
To remove, replace or amend provisions contained in legislation related to membership of Dáil Éireann; eligibility for jury service; disqualification of company directors; National Lottery games discretion, where these provisions are based on the current or past mental health status of the individual concerned.
The Bill seeks to make it a criminal offence to refuse people insurance or credit-loaning facilities on the basis of a history of a mental health condition; and to ensure that people with mental health conditions are not discriminated against in legal proceedings, where their medical record has no relevance to the charge.
Sections 1 & 2
These sections contain general provisions such as the short title of the Bill and the date of commencement, a standard interpretation section which provides for the definition of various terms used throughout the Act and outlines the parameters of any references used in the Act.
Section 3

Section 3 removes a discriminatory measure affecting Members of Dáil Éireann who under the Electoral Act 1992 are no longer eligible to be members should they be found to be of ‘unsound mind’. Subsection 1 provides that ‘lack of decision-making ability’, as defined in the definitions section of this bill as a functional assessment of decision-making ability, will replace the concept of ‘unsound mind’. Subsection 2 outlines how if a person’s lack of decision-making ability is found to be permanent and they can no longer perform their functions as a legislator it will be possible for disqualification of Dáil Éireann to come into effect. This removes the vague and undefined phrase of ‘unsound mind’ from the Electoral Act 1992 and brings it into line with the UN Convention on the Rights of Persons with Disabilities which Ireland signed in 2007. It will also mean TDs will no longer be at risk of disqualification from holding their seats on the sole basis of being diagnosed with a mental health condition.

Section 4
Section 4 removes the discriminatory measure affecting people who have been diagnosed and treated by a medical practitioner for a mental health condition. Currently the Juries Act 1976 prohibits people in such a situation from participating in jury service.
It is proposed that the remaining provision under ‘Incapable persons’ that deals with people who have insufficient capacity will adequately provide for situations where an individual lacks decision-making ability due to a mental health condition.
Section 5
Section 5 removes the undefined and vague phrase ‘of unsound mind’ in the Companies Act 1963 and replaces it with the phrase ‘lacks decision-making ability’ as defined in the definitions section of this bill as a functional assessment of decision-making ability. This will bring Irish legislation in line with the UN Convention on the Rights of Persons with Disabilities, which Ireland signed in 2007.
Section 6
Section 6 removes the potentially discriminatory provision in section 28(2)(b) of the National Lottery Act 1986, which allows the rules of a lottery game to make provision for the giving of prizes in cases where the holders of the winning tickets are persons under any other legal disability or of unsound mind. This section proposes to remove the reference to “or of unsound mind” which has potentially discriminatory implications.
Section 7
Section 7 is introduced in order to ensure that no legislation is interpreted by the Courts in a way that could impair the rights of any person solely on the basis that the person is experiencing or has in the past experienced a mental health condition.
Section 8
Section 8 makes it a criminal offence to refuse someone insurance on the basis of having a history of a mental health condition. The Equal Status Acts 2000-2011 allow anyone being discriminated against in such circumstances to seek legal recompense. The proposed section gives Gardaí the power to request a warrant to search the premises of the insurer where they are satisfied that a warrant is necessary to obtain evidence relating to discrimination on such grounds. It sets out how the Gardaí can obtain such a warrant, the terms of this warrant, and the repercussions for individuals who obstruct Gardaí taking action under this provision, or fail to comply with any instruction on foot of this provision. The powers of arrest accorded to Gardaí are outlined. It details how if a person representing a company is found liable of an offence under this provision, then the company itself shall be deemed liable also.
Section 9
Section 9 provides that if an insurer is found to have discriminated against someone on the grounds of their mental health history then the insurer shall have no recourse to enforce any of the terms or conditions that apply to the policy taken out. However, should an insurer be prosecuted on the basis of discrimination of this nature, the contract of insurance will stand to the benefit of the individual.
Section 10
Section 10 makes it a criminal offence to refuse someone credit on the basis of a history of a mental health condition. The Equal Status Acts 2000-2011 allow anyone being discriminated against in such circumstances to seek legal recompense. This provision sets out how a creditor will be fined and / or imprisoned should they refuse credit on the basis of a mental health condition. It gives Gardaí the power to request a warrant to search the premises of the creditor where they are satisfied that a warrant is necessary to obtain evidence relating to discrimination on such grounds. It sets out how the Gardaí can obtain such a warrant, the terms of this warrant, and the repercussions for individuals who obstruct Gardaí taking action under this provision, or fails to comply with any instruction on foot of this provision. The powers of arrest accorded to Gardaí are outlined. It details how if a person representing a company is found liable of an offence under this provision, then the company itself shall be deemed liable also.