IHRC publishes observations on the Assisted Decision-Making (Capacity) Bill 2013

The Irish Human Rights Commission (IHRC) today published its Observations on the Assisted Decision-Making (Capacity) Bill 2013. While welcoming the broad reforms outlined in the proposed legislation, the IHRC recommends that the Bill be reviewed so that it meets international human rights standards and fully respects the rights of people who require decision-making supports.

 The IHRC calls for stronger recognition for legal capacity which upholds the will and preference of people with disabilities in decision-making arrangements. In addition, guarantees of equal access to justice in relation to determinations of mental capacity are required. An independent well-resourced human rights based oversight body is also crucial to the effectiveness of the legislation and vindicating the rights of persons with disabilities.

 The Observations were submitted to Alan Shatter TD, Minister for Justice, Equality and Defence.

 Dr Mary Murphy, Acting Chair of the IHRC, stated: “The IHRC welcomes the Bill which finally introduces a statutory scheme for supported decision-making by people with disabilities. The IHRC has long called for legislative reforms to move away from archaic and discriminatory approaches to mental capacity and towards an approach based on supporting a person’s will and preference in decision making, as set out in international human rights law. However, the IHRC is concerned that relevant human rights standards are not fully reflected in the present draft legislation, particularly the UN Convention on the Rights of Persons with Disabilities (CRPD) which Ireland intends to ratify once the legislation is enacted.”

 Dr Murphy continued: “Specifically Article 12 of the CRPD affirms that persons with disabilities enjoy the full range of human rights at all times, and the enjoyment of those rights cannot be limited because a person’s mental capacity may fluctuate. The Bill fails to distinguish between two distinct concepts; legal capacity and mental capacity in a manner that is compatible with Article 12. In its Observations the IHRC identifies a number of aspects of the Bill where substitute decision making is provided for, and calls for more stringent safeguards to ensure that such arrangements are subject to oversight and minimises the level of interference with the person’s rights, this is particularly important for persons who are at present within the Wards of Court system. Importantly, the IHRC questions the emphasis in the Bill on the Courts as a means of making determinations of capacity and putting decision making arrangements in place, and urges consideration of less expensive, complex and onerous procedures, that might be adopted to establish the supports a person needs to make decisions and exercise their legal capacity at first instance.”

 Highlighting the need for the Bill and pre-existing mental health legislation to be integrated, Dr Des Hogan, Chief Executive of the IHRC said: “The autonomy and capacity of people suffering from a mental disorder who require admission and treatment in approved mental health facilities should be fully and equally protected under this Bill. There needs to be an equivalent system for assessing mental capacity under both pieces of legislation. This is significant when dealing with consent to treatment and safeguards against arbitrary detention in psychiatric facilities.”

 As regards the Office of the Public Guardian; a new Office created under the Bill, Dr Hogan continued:

“There needs to be a central independent authority tasked with achieving the overall objectives of the legislation. At present the provisions in relation to the Office of the Public Guardian do not appear sufficiently robust to achieve these aims. It is therefore recommended that the objectives and independence of the Office of the Public Guardian be clearly set out in the Bill and that the general oversight functions of the Office be strengthened. It must be emphasised, that the allocation of sufficient resources by the Government will be key to ensuring the successful implementation of the legislation’s decision-making scheme.”

Key Recommendations:

  • Explicit reference to the CRPD, and specifically Article 12 (‘Equal recognition before the law’), be included in the Bill;

  • The distinction between legal capacity and mental capacity be clarified within the Bill, so as to ensure a person’s legalcapacity is guaranteed and is not infringed on the basis of their having diminished or impaired mental capacity;

  • Reconsider whether a formal Circuit Court proceeding is the most appropriate forum for preliminary assessments of capacity and consider implementing a more informal initial procedure possibly involving the Office of the Public Guardian;

  • Introduce safeguards to ensure legal representation, including through legal aid, is provided to the relevant persons before the Courts in applications concerning an assessment of that person’s mental capacity;

  • Amend those provisions of the Bill that would allow the Court to make an order that the legal costs arising from an application in respect of a person’s mental capacity be recovered from the assets of the person who is the subject of the application, for the benefit of the person making the application. This provision constitutes an arbitrary interference with the property rights of persons who are the subject of such proceedings and should be removed;

  • Existing Wards of Court should be brought within the ambit of the 2013 Bill immediately by providing for automatic transitional arrangements upon commencement of the proposed legislation;

  • Reconsider those provisions of the Bill relating to the ‘deprivation of liberty’ of persons who are determined to lack mental capacity and ensure the overall integration of legal standards applicable to the Capacity Bill and the Mental Health Act 2001;

  • Expressly prohibit the non-therapeutic sterilisation of persons who are determined to lack mental capacity and, more generally, ensure that issues relating to the non-consensual sterilisation of a person with diminished mental capacity is fully regulated in law.

Discussing the IHRC concerns surrounding the proposed legislation more generally, Dr Hogan further notes that the recent House of Lords Select Committee Report on the UK Mental Capacity Act 2005 may be instructive in the Irish context: “It is timely that the House of Lords Select Committee have recently published their report, ‘Mental Capacity Act 2005: Post-Legislative Scrutiny’. This report provides us with the opportunity to take on board the lessons learned from the UK experience so as to avoid pitfalls such as lack of resources, overreliance on Courts, and failure to provide adequate safeguards regarding the deprivation of liberty of incapacitated persons.”

 

ENDS/

 

A spokesperson is available for comment.

 

For further information please contact, Fidelma Joyce, IHRC, Mob: 087 783 4939

Note to Editors

 

 

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