A Right to Care and the Care Referendum on 8 March
With naïve optimism, for much of last year I expected that the Government’s Referendum proposal on ‘care’ would implement the recommendation of the Citizens’ Assembly on Gender Equality which reported in June 2021.
Taoiseach Leo Varadkar committed to the 100-person Citizens’ Assembly on Gender Equality in 2018 with the express purpose (among others) of allowing evidence-based debate and careful deliberation to resolve the question of how to amend the outdated ‘women in the home’ provision of Article 41.2 Bunreacht na hEireann.
Back in 2014, the Convention on the Constitution (involving 66 randomly selected citizens and 33 cross-party and cross-border politicians) had advised that Article 41.2 should be replaced with a mandate on the State to provide ‘a reasonable level of support’ to carers both ‘in the home’ and ‘beyond the home’.
By 2018, however, the Oireachtas Joint Committee on Justice and Equality was at odds over whether to recommend a Referendum simply to delete Article 41.2, or to replace Article 41.2 with a gender-neutral but similarly symbolic statement on care, or to insert a legally enforceable right — which is the nature of most provisions of the ‘Fundamental Rights’ Articles in the Irish Constitution.
A Citizens’ Assembly on Gender Equality was determined to be the best mechanism for figuring out the correct approach. 99 members of the public and their independent Chairperson duly got to work, holding hearings and meetings (including online during the Covid pandemic).
They concluded: ‘Article 41.2 of the Constitution should be deleted and replaced with language that is not gender specific and obliges the State to take reasonable measures to support care within the home and wider community.’
In December 2022, the all-party Oireachtas Joint Committee on Gender Equality ratified the Citizens’ recommendation, advising Government to hold a Referendum to replace Article 41.2 with the following wording: ‘The State recognises that care within and outside the home and Family gives to the State a support without which the common good cannot be achieved. The State shall, therefore, take reasonable measures to support care within and outside the home and Family.’
That the Government has emphatically rejected the Citizens’ and all-party Oireachtas Committee’s advice, and is instead promoting a Constitutional Article on ‘Care’ that creates no legal right and confines the State’s role to ‘striving to support’ the ‘provision of care by members of a family to one another by reason of the bonds that exist among them’, raises serious questions for those of us concerned about a socially just future for Ireland.
A right to care support
The Citizens’ and joint Oireachtas Committee on Gender Equality’s proposal — designed over eight years through extensive citizen/politician/independent expert collaboration — had two crucial aspects.
First, the State would be legally required to act (‘shall…take reasonable measures’), such that the courts would have a supervisory role. Second, support for care would be recognised as a shared democratic responsibility and not a private matter of family obligation alone.
In other words, each of us would be understood to have a justifiable claim to care assistance or support from the State when we were in need of it (including as a carer). We would be individual rights-holders in relation to care, bound together by a shared commitment to support each other’s flourishing and wellbeing, and by recognition that any of us at any time may require such support. Our right to care services and support would not be confined to the family sphere but explicitly acknowledged to go beyond it, emphasising our equal status as members of a community and society who are entitled to live independently and included as such.
The Citizens’ Assembly committed to the idea of a legally enforceable State obligation to support care within and outside the home because of the concrete evidence its members considered — of the severe lack of coordinated, reliable and adequately resourced home and community care and personal support services to enable people to live with dignity; of the labour exploitation of many people working in the care sector; and of the inordinate amount of unpaid care work carried out in Ireland (as the Irish Human Rights and Equality Commission explains, predominantly by women but also with disproportionate impacts on groups such as young carers, disabled people who are carers, and lone parents), coupled with a lack of respite services.
Failures of care
In a 2021 report on the demand for adult care services, the ESRI highlighted that Ireland is out of step with our European counterparts in that ‘Wider home support arrangements in Ireland follow a family-based structure [which] differs from the typical systems in other northern European countries where the use of professional carers plays a much larger role in meeting domestic and personal care needs of the older population, as well as those of adults living with a disability.’ Driving this over-reliance on family are ‘large differences in supply of home support per capita across regions in Ireland’ and ‘considerable geographical variation in the distribution of primary and community care services’.
TILDA researchers report that ‘high hours of caring are associated with poor health and wellbeing outcomes, particularly for women’ and that ‘To encourage family caring, state-provided home support must also be available to facilitate and support carers to retain their work and leisure in addition to their caregiving.’
Furthermore, both the ESRI and HIQA acknowledge that institutionalisation is imposed on many older people and disabled people who should — and wish to — instead be enabled to access community and home care and support services. This point should remind us that access to care and personal support services is essential for safeguarding people’s rights to liberty and to protection of the person: rights already enshrined in Article 40 of the Constitution.
Admittedly, the Citizens’ Assembly’s proposed Constitutional obligation on the State to ‘take reasonable measures to support care within and outside the home and Family’ would not allow the courts to specify the policy or legislative solutions that politicians or Government officials should implement. The obligation would, however, enable an individual to argue that the State’s response to their need for care had been fundamentally irrational or unfair. The ‘reasonable measures’ language is borrowed from the South African Constitution, which protects a range of ‘socio-economic’ rights; it also echoes the existing ‘reasonableness’ standard in the law of judicial review (which oversees the decision-making behaviour of state officials).
Statutory entitlements
If the Government had put forward the Citizens’ Assembly’s Referendum proposal, public debate would surely now be focused on what ‘reasonable measures to support care within and outside the home and Family’ might mean. Inevitably, discussion would have turned to the glaring absence in Ireland of a system of statutory rights to care services and supports. If the Referendum had passed, I believe cases would have been initiated claiming that the current ad hoc approach to care and personal support provision — where ‘accessing care services in Ireland is a “postcode lottery”’ (to quote IHREC) — breached the ‘reasonable measures’ obligation.
The potential of the Citizens’ Assembly’s recommendation to bring about some systemic change, or to contribute pressure for faster change than State officials prefer, is perhaps why the Government kept it out of the people’s hands.
We are an outlier among our neighbouring jurisdictions in our abject lack of legislation obliging state authorities to provide a range of care services and supports, based on clear criteria and in certain timeframes, such that failures can lead easily to court action and state budgets and organisational structures are designed for the purpose of compliance. To me, this is a legacy of the Church’s involvement in and desire for control over social care provision in Ireland — morphed now into the neoliberal model. Government pays, but no legal obligations attach, and those who manage to receive any care do so as the beneficiaries of charity or benevolence: not as rights-holders who are entitled to make demands of the State.
Although the frameworks are not without their flaws, in each jurisdiction of England, Wales, Scotland and Northern Ireland, a legislative scheme sets out entitlements to a variation of social care services, needs assessments, supports for carers, and financial entitlement thresholds (or not). HIQA’s survey of the Netherlands, Australia and New Zealand also concludes: ‘Each jurisdiction has legislation, strategy, policy, and service delivery systems in place for homecare and support services.’
In a 2022 report to Government, HIQA advised: ‘Inconsistencies remain in home support services for adults (including older persons and people with disabilities), including funding arrangements, assessment of need, eligibility criteria and allocation of resources. Variation is also evident in homecare and support services for children with complex needs in our communities… A statutory entitlement to homecare and support services would help to address the current inequities in service delivery.’ Senator Tom Clonan has made efforts through Private Members legislation in the Seanad to further this prospect, but despite these efforts and others, and despite the Sláintecare report and 2020 Programme for Government both committing to statutory rights to home care, concrete progress on a comprehensive approach to providing access to consensual, person-centred care services and support in Ireland is difficult to see.
The crucial question to consider before next Friday’s Referendum is what impact, if any, will our vote have on the problems outlined above?
A ‘Yes’ vote
Voting ‘Yes’ to the Government’s proposal will not require any legislative or policy action, nor will it prevent such action being taken to provide care services and support within or outside the home. Should the public approve the Referendum proposal, the Constitution will contain symbolic recognition of the value of family members’ care for each other, and we will all need to get to work advocating for and securing transformation in how the State approaches the issue of access to care and support for care. Solidarity with the people most affected by the extreme neglect, to date, of the State’s responsibility to support and enable access to care will be crucial. This Referendum campaign has, understandably and foreseeably, damaged trust between groups who campaigned together to achieve important gains through the Citizens’ Assembly and all-party Oireachtas Committee recommendations, only for the Government to torpedo that progress by attaching repeal of Article 41.2 (the ‘women in the home’ provision) to the insertion of a new Constitutional Article on ‘Care’ that the Citizens never recommended — and that is arguably the opposite of what the Citizens recommended.
In 2014, when the Convention on the Constitution advocated replacing Article 41.2 with a state obligation to provide a reasonable level of support to carers within and outside the home, they also recommended a wholesale insertion of economic, social and cultural rights into the Constitution (including the right to housing) — which similarly would be guaranteed by a State obligation to take ‘reasonable measures’ to secure those rights. Thus, the Care Referendum could have been — but now is not — the first step in expanding the Irish Constitution’s coverage of socio-economic rights, bringing Ireland in line with most countries in the world and demonstrating our capability and confidence as a society beginning our second century of independence to shape our own future (as IHREC persuasively advocated in a 2023 statement on ‘The Incorporation of Economic, Social and Cultural Rights into the Irish Constitution’).
A ‘Yes’ vote will therefore not advance the protection of socio-economic rights in the Constitution.
Worse, however, a ‘Yes’ vote will impede — at least to some extent — future efforts to enshrine an enforceable right to care services or support in the Constitution.
The Government is not proposing to exchange Article 41.2 for a new subsection of the ‘Family’ Article of the Constitution recognising the value of family care and promising to ‘strive to support’ it. Rather, the Government is proposing an entirely new, standalone Constitutional Article (42B) entitled ‘Care’. Therefore, all the Constitution will say about Care is what the Government is proposing in this Referendum: ‘The State recognises that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.’
It is highly unlikely that Article 42B will be amended in the foreseeable future to add another clause providing for the right that the Citizens’ Assembly recommended. (Of course, while unlikely, such future action is not entirely impossible and could be an advocacy goal if the Referendum is passed.)
Many disabled people, and FLAC, have argued that the Government’s proposed Constitutional construction of ‘Care’ — involving an absence of State responsibility, and ignoring individuals’ universal need for care in the community also — contravenes the UN Convention on the Rights of Persons with Disabilites (UNCRPD). Indeed, the Decision of the UN Committee on the Rights of Persons with Disabilities in the 2022 case of Maria Simona Bellini v Italy explains why. The Decision clarifies that for states to comply with the Article 19 UNCRPD right to live independently and included in the community: ‘individualized support services must be considered a right rather than a form of medical, social or charity care.’ What is more:
‘the obligation to facilitate full enjoyment by persons with disabilities of the right to live in the community requires States to promote, facilitate and provide appropriate legislative, administrative, budgetary, judicial, programmatic, promotional and other measures to ensure the full realization of the right to live independently and be included in the community as enshrined in the Convention. The Committee has also emphasised that States parties should empower family members to support family members with disabilities to realize their right to live independently and be included in the community.’
A ‘No’ vote
A ‘No’ vote will maintain the existing Article 41.2, which discriminatorily characterises women alone as having a ‘life within the home’ and ‘duties in the home’. The Supreme Court is due to hold a hearing this April in a case which includes the question of whether the State is breaching Article 41.2 by its treatment of a woman who is providing 24-hour care to her adult son who is disabled but has been deemed ineligible for full-rate carer’s allowance because her partner earns €850 per week. To date, the Supreme Court has refused to find that Article 41.2 imposes legal obligations on the State: because of the wording that the State will merely ‘endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home’.
If next Friday’s Care Referendum is defeated, coordinated and strong civil society advocacy will be required — and there will be the opportunity for such advocacy — to ensure that a future Government puts forward a proposal to enshrine support for care as a justiciable right alongside deletion of Article 41.2. So far, one opposition party leader has promised to do so, and there is a need for further public pressure to convince all politicians of this approach.
