Tomorrow, the Assisted Decision-Making (Capacity) Bill finally progresses to Committee stage in the Dail. This Bill seeks to abolish the outdated ward of court system which currently provides the only mechanism in Irish law for removing the legal capacity of an adult and appointing a substitute decision-maker to take legal actions on that adult’s behalf. The introduction of this Bill has been broadly welcomed by civil society, organisations of persons with disabilities, healthcare professionals, families and state bodies – especially as it has been recognised by government as a key reform which is needed in order to enable Ireland to ratify the UN Convention on the Rights of Persons with Disabilities. However, many organisations and inviduals, including a coalition of NGOs working in the fields of disability, mental health and ageing – have identified changes which need to be made to the Bill to ensure that it fully respects the rights of adults in Ireland to make their own decisions, with support, if they wish.
The Department of Justice has published the amendments it proposes to introduce to the Bill at Committee stage here – where you can also read the amendments proposed by all members of the Dail Select Committee on Justice, Defence and Equality. Some of the amendments proposed by the Department are most welcome – and respond to the concerns highlighted by NGOs based on the text of the Bill as first published. One such amendment is the proposal to remove co-decision making agreements from the court process and to make them a more flexible and accessible instrument, similar to the decision-making assistance agreement. Another example is the change in the name of the state body which will oversee implementation of the new law, from the ‘Office to Public Guardian’ to the ‘Decision Support Service.’ While this might seem like a minor change, it can be viewed as an important reaffirmation of the purpose of the legislation – not to provide for paternalistic interventions into people’s lives – but rather to support individuals’ autonomy and self-determination.
However, other amendments proposed by the Department of Justice demonstrate that the ‘paradigm shift’ called for by the UN Convention on the Rights of Persons with Disabilities has not yet been fully achieved. The Centre for Disability Law and Policy, along with other NGOs, has argued that in order for the Bill to have practical and meaningful effect in the lives of people with disabilities – the threshold for ability to enter into a decision-making assistance agreement should be lowered from what was set out in the original text of the Bill. This has not been included in the Department’s proposed amendments to the Bill at Committee stage.
Further, the UN Committee on the Rights of Persons with Disabilities has now clarified in General Comment 1 that ‘perceived or actual deficits in mental capacity’ can never be used as a justification for a denial or restriction of legal capacity, ‘even in respect of a single decision.’ The Capacity Bill, as originally drafted, relied on an ‘assessment of mental capacity’ to determine what kinds of support an individual could access under the Bill, or whether an individual would have her legal capacity restricted by the appointment of a decision-making representative (a form of substitute decision-making). The amendments set out by the Department have not changed this approach – but the Department has proposed to replace the term ‘mental capacity’ in the Bill with the term ‘decision-making capacity.’ In my view, this change is no more than window dressing, as ‘decision-making capacity’ is given the same meaning as ‘mental capacity’ and continues to be used as a basis for restricting legal capacity. A similar critique can be made the Department’s proposal to remove the term ‘informal decision-making’ from the Bill, while retaining legal protection for third parties who make substitute decisions on behalf of persons who they believe ‘lack capacity’ (the very power which was originally provided to ‘informal decision-makers’ in the original text of the Bill). These proposed amendments therefore, do not address the concerns raised by civil society that those most in need of decision-making support will be denied the opportunity to make binding assistance agreements, and that an unacceptably wide power is granted to substitute decision-makers, who have not been chosen by the person or appointed by the court, to make decisions on behalf of a person they believe to ‘lack capacity.’
Based on the amendments proposed by the Department of Justice, the capacity/incapacity paradigm is now firmly embedded in the Bill – in decision-making assistance agreements, co decision-making agreements, decision-making representative orders, powers of attorney and advance healthcare directives. Again, while a number of submissions were made by NGOs to the Department to advocate that advance healthcare directives be recognised as legally binding in situations of involuntary detention (see here and here) – this proposal has not been reflected in the amendments introducing advance healthcare directives to the Bill at Committee stage. Finally, the relationship between this Bill and other areas of law where ‘mental capacity’ or ‘decision-making capacity’ is used as a criteria to restrict or deny legal capacity (for example in mental health law, sexual offences and eligibility for jury service) has not been clarified in the amendments proposed at this stage.
Along with many others, I will be watching the debate tomorrow with interest, and hope to see some of the concerns outlined here addressed by the members of the Committee. This debate is all the more significant since the Bill is one of the key pieces of legislation which government has deemed necessary in order to facilitate Ireland’s ratification of the UN Convention. In my view, if the Bill is not amended to ensure compliance with the UN Committee’s interpretation of Article 12 of the Convention, then it will remain a barrier to Ireland’s ratification of this important human rights treaty.