The Irish Human Rights Commission (IHRC), today, at a presentation before the Oireachtas Joint Committee on Justice, Defence and Equality, called on the Government to enact long overdue mental capacity legislation this year.
In November 2008, the IHRC provided its observations to Government on the Scheme of the Mental Capacity Bill 2008. It made a submission on the proposed mental capacity legislation to the Oireachtas Joint Committee on Justice, Defence and Equality in August 2011. The human rights highlighted in the submission centre on the presumption that every person has legal capacity (or decision making capacity) and the strict safeguards which should apply where the law removes one’s legal capacity.
Speaking to the Committee, Dr Maurice Manning, President of the IHRC, said
"Five years have passed since the UN Convention on the Rights of Persons with Disabilities (CRPD) was signed by the Irish State. The lack of up-to-date mental capacity legislation is one of the main obstacles holding up ratification of this key treaty. This long overdue legislation should be enacted this year in full compliance with human rights standards."
Dr Manning continued
"A very definite line of jurisprudence has emerged from the European Court of Human Rights (ECtHR). This is demonstrated in the ECtHR judgment in DD v Lithuania, a recent case in which the IHRC was involved, concerning the placement of a Lithuanian national into a social care home for people with mental disabilities The EctHR recognised that specific legal safeguards must be in place to protect a person’s legal capacity which cannot be arbitrarily stripped away by the State. Even those European States which have not ratified the CRPD are already bound by the evolving standards being established by the European Court."
Mr Hogan, Acting Chief Executive of the IHRC said
"to conform with the CRPD, the legislation on mental capacity must recognise that every person has legal or decision-making capacity unless this is removed by law. One’s capacity should only be removed by law under strict safeguards. However, even within a system that allows for a form of guardianship, the will and preference of the person should be reflected. Ultimately, an individual whose capacity is removed must have the right to ask a court to intervene to review a declaration of incapacity as this "is one of the most important rights for the person" deprived of capacity in the words of the European Court of Human Rights. Thus determinations of capacity should reflect the full range of human rights protection."
The IHRC considers that the presumption of capacity under the CRPD requires proper supports. Mr Hogan said
"a person with an intellectual disability, for example, should receive the necessary supports to exercise their legal capacity. Following this "functional approach" to disability means that for example, a person’s inability to deal with complex financial decisions does not mean the same person cannot make decisions on voting or indicate other preferences. To make the system accessible for all people with mental disabilities, it is essential that determinations of capacity occur in a manner which is affordable to those individuals and which is carried out sensitively by people with suitable qualifications and expertise."
Mr Hogan continued
"Any substituted decision making should only arise where absolutely necessary, where supported decision making proves impossible. It should be both subject specific and time specific, and not a blanket system."
The IHRC considers that the Mental Capacity legislation should be compatible with and afford no less protections than the protections available under the Mental Health Act 2001 and the Criminal Law (Insanity) Act 2006 which are both being reviewed at present. In conclusion, Dr Manning said "Specific provisions should be introduced to ensure that a person who is the subject of a determination in relation to capacity is not arbitrarily deprived of their liberty or subject to medical treatment orders without proper procedural protections."
ENDS/
Mr Des Hogan, Acting Chief Executive of the IHRC is available for comment
For further information, please contact:
Fidelma Joyce, IHRC, Tel: 01 8589601, Mob: 087 783 4939
Notes to Editor
- The Scheme of the Mental Capacity Bill 2008 was referred to the IHRC pursuant to Section 8(b) of the Human Rights Commission Act 2000 by the Department of Justice, Equality and Law Reform, on 16 September 2008. The IHRC’s submission to the Joint Committee was made pursuant to Sections 8(a) and (e) of the Human Rights Commission Act 2000.
- Section 2 of the Human Rights Commission Act 2000 provides that "human rights" means-
"(a) the rights, liberties and freedoms conferred on, or guaranteed to, persons by the Constitution, and
(b) the rights, liberties or freedoms conferred on, or guaranteed to, persons by any agreement, treaty or convention to which the State is a party."
Key articles in the CRPD include Articles 5 (non-discrimination), 12 (equal recognition before the law) and Article 19 (living independently and being included in the community).
- In Stanev v Bulgaria, (Application no. 36760/06) 17 January 2012, the European Court of Human Rights stated:
- "In particular, the right to ask a court to review a declaration of incapacity is one of the most important rights for the person concerned since such a procedure, once initiated, will be decisive for the exercise of all the rights and freedoms affected by the declaration of incapacity, not least in relation to any restrictions that may be placed on the person’s liberty (see also Shtukaturov, cited above, � 71). The Court therefore considers that this right is one of the fundamental procedural rights for the protection of those who have been partially deprived of legal capacity. It follows that such persons should in principle enjoy direct access to the courts in this sphere." (at paragraph 241).
- In DD v Lithuania the European Court of Human Rights found that the Applicant’s rights under Article 5(4) (detention) and Article 6 (right to fair hearing in challenging her incapacity status) were violated.
- The IHRC Submission to the Department of Health’s Review of the Mental Health Act 2001 is available at www.ihrc.ie/newsevents/press/2011/10/13/ihrc-calls-for-robust-human-rights-safeguards-in-r/