Emily Logan: We must reject institutions as a first solution

Emily Logan: We must reject institutions as a first solution

In the introductory statement of the 2011 Programme for Government, we saw an explicit commitment to recovery from the financial crisis stating that “it is no exaggeration to say that we now face one of the darkest hours in the history of our independent state”.

In his efforts to make Ireland the best small country in the world in which to do business, Enda Kenny was accused of saving the economy but losing society in the process.

Now in 2020, at an even darker hour in the history of our independent state, the main political parties have published a joint document outlining ten key missions for a new government, with a number of very high aspirations indeed: Universal healthcare and housing for all.

In addition, they commit to a new social contract and a better quality of life for all. I think that most of us feel proud of the fact that here in Ireland our Covid-19 response strategy is based on the solid foundation of science and is being led by health professionals, as opposed to political ideology as in other countries.

But we need to be careful about how we will define vulnerability in the longer-term. The coronavirus has hunted our vulnerable, trespassed not only into our homes but penetrated our well-established and manifold institutions, where 54% of the victims of Covid-19 have resided.

By institutions, I mean places, public and private, with a highly structured routine where people’s daily lives are regulated by management. In Ireland, this includes, but is not limited to, people with disabilities, older people, children in residential care, separated children seeking asylum, direct provision, people detained under mental health legislation and addiction services.

It has laid bare our egregious history, our present reality and our perennial propensity to institutionalise members of our society when we can provide no greater vision, than to “warehouse” them. And the current model of institutionalising people includes spending millions of public monies by outsourcing to non-state actors, making public accountability and oversight much more difficult.

Ireland is a constitutional democracy, affirmed unequivocally by Article 6.1 of the Constitution, which states that all powers of government come from the people. It also states that we the people decide all questions of national policy, according to the requirements of the common good.

The political parties’ joint document acknowledges this by expressing a desire to respond decisively to the agenda of change which came through so clearly from the general election. The document states that “we know that there is no going back to the old way of doing things”.

That’s reassuring, because the old way, as we now know, as chronicled in umpteen formal inquiries, evidenced the egregious human rights violations of thousands of adults and children in Irish institutions.

The old way includes paternalism, for instance the default approach in the courts to cases involving people with disabilities. The first legal reference was the 1949 case of Philip Clarke, who challenged his detention under the Mental Treatment Act of 1945 where the court proclaimed “we do not see the common good or the dignity and freedom of the individual assured by allowing persons, alleged to be suffering from such infirmity to remain at large”.

Thankfully, more recent judgments, like that of Mr Justice John MacMenamin, then a High Court judge, emphasised that the principles of dignity, autonomy, equality, and participation must have application in the lives of people with disabilities, acknowledging the paradigm shift in the international legal approach to people with a disability.

In the context of Covid-19 and from a public health perspective, vulnerability as a concept has legitimacy. However, in considering what has been proposed by the two parties in their joint document as a new social contract and a better quality of life for all, it is imperative that it is not only through an epidemiological lens of “vulnerability” that we make future determinations that will have a profound effect on people’s quality of life.

Human rights are often articulated in the form of a prohibition on unjustifiable discrimination but the concept has a more positive dimension, an emancipatory strand that recognises human potential and it is this human potential on which we should develop this new social contract, a new way of determining our desired quality of life. We need to move away from viewing people as passive recipients of treatment, of management, of charity, to a world where all people are active subjects in the exercise of their human rights and dignity.

This should include creating the conditions that allow meaningful participation by a wide range of people, including the people that have been described as “vulnerable” and living in Irish institutions.

Under the rubric of fundamental rights in the Constitution, we already have a social contract between the state and its people. This is further bolstered by relevant international human rights law, to which Ireland is a signatory.

This should provide the guidance on how we go about developing and articulating what we mean by a better quality of life for all. In the context of the current crisis, people now see the huge value of a functioning state but we also need that same state to respect our individual right to self-determination. Part of this is about being careful about how we will define “vulnerability” in the longer-term.

If the political parties can do something as momentous as bury civil war politics, then surely we can bury the epidemic of institutionalisation in Ireland.

Emily Logan is Adjunct Prof. at the Irish Centre for Human Rights and Former Chief Commissioner of the Irish Human Rights and Equality Commission.

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