Joint Committee on Justice, Defence and Equality

A human rights-based approach to legal capacity is not currently prevalent despite pockets of good practice, according to a new report on the proposed Mental Capacity Legislation from the Oireachtas Joint Committee on Justice, Defence and Equality.

There is a critical role for an Office of Public Guardian or equivalent – in terms of codes of practice, education and support – to ensure that the rights of individuals are protected, the report found. The emphasis should be on supported decision making rather than substitute decision making. As such, the title of the Office of Public Guardian as provided for in the Bill should be amended to reflect the goal of supporting as opposed to substituting legal capacity, the Committee concluded.

A legal framework is needed for these supports and safeguards, which ensures that supports offered are voluntary, proportional and tailored to the person’s circumstance and free of conflict of interests and apply for the shortest time possible so that the will and preferences of people with disabilities are respected.

Among the Committee’s observations on the proposed legislation are:

· The use of language must not be forgotten and is probably as important as the content of the Bill. Language has the potential to cause difficulty and offence as it creates labelling, which creates division and inequality.

· Concerns were raised by the use of the best interests model. It was stated to the Committee that this is a model of the past. It demonstrates the paternalistic view of trying to determine what the best interests of a person are, even of a person who can decide for himself or herself what his or her best interests are.

· When assessing one’s capacity the Committee was told that deciding on someone’s capacity in a court was not an appropriate setting. The general feeling was that a more appropriate setting would be a flexible informal tribunal which can meet with the persons in their own setting, at a time which is suitable and most effective to them and with the appropriate supports to maximise their capacity.

· The Committee was very concerned to learn that some of the most basic human rights are not afforded to those whose capacity is called into question. The Committee was told that without legal capacity, one cannot marry, have a family, manage their own money, make medical decisions, have a sexual relationship, decide where to live, enter into contracts or vote.

· The Committee was told that the approach with the current wardship system must be rejected. It is hoped that the wardship system will change with the incorporation of new legislation.

· It was put to the Committee that legislation must be based on supported decision making. The result of excluding people from making their own decisions can be devastating. Personal guardians or substitute decision makers should only become involved as a last resort.

· Currently there is no legislation on advanced care directives so these, if they exist, cannot be enforced by a doctor or hospital. It was suggested that the legislation should include provision for such directives.

· The Committee was told that there is a hierarchy of decisions ranging from what a person will have to drink to buying a house. The legislation should reflect this. Currently, when one’s capacity is assessed, there is an ‘all or nothing’ approach.

· It was suggested to the Committee that the role of ‘special visitors’ should be based on expertise rather than profession.

· The Committee was told that some research in other jurisdictions has shown a frightening degree of overuse of anti-psychotic drugs in people with dementia in nursing homes and other institutions as a form of behavioural control. The lack of a robust regime is critical in this regard.

· When assessing person’s capacity, care must be taken that we do not set the bar too high. The legislation could set the bar far higher for people with disabilities and other conditions than we set for ourselves.

· Currently there is no legislation on advanced care directives so these, if they exist, cannot be enforced by a doctor or hospital. It was suggested that the legislation should include provision for such directives.

Chairman of the Committee, David Stanton TD, said: “This has been a very long and difficult process given the complexity of the topic. However, it is essential that the whole area of capacity is reformed. Our present legal framework on capacity derives from legislation in the 19th Century, the Lunacy Act of 1871, and is totally inadequate to meet modern standards. It is also insufficient to meet our international commitments under the UN Treaty on the Rights of Persons with Disabilities which was signed by Ireland in 2007.

In light of all the medical advances and changes in social attitudes which have taken place since the 19th Century, it is imperative that the law is updated to reflect the principles of a modern society. During the Committee hearings on legal capacity, I was particularly struck by the profound and negative impact the law as it currently stands can have on the daily lives of some of our most vulnerable citizens.

It is important that all parties involved in this area should continue the superb work and support that they provide and I hope that any new legislation will address many of the concerns raised. I would like to thank all of those who took part in this process. All points raised in submissions have been noted and the report will be sent to the Minister as requested. I hope it will make a meaningful contribution to the development of modern and effective capacity legislation.”

To view the report, click on following link: (Note large file size of 109MB)

Click here to view Committee Chairman David Stanton discussing the report: