Justice Committee Hearings on Capacity Legislation

Today, the Oireachtas Committee on Justice, Defence and Equality will hear submissions from civil society groups on the proposed Mental Capacity Bill. The organisations participating in the hearing are: Inclusion Ireland, Members of the Psychological Society of Ireland, the Alzheimers Society of Ireland, the National Institute for Intellectual Disability (Trinity College Dublin) and the Mental Health Commission. David Stanton TD, Chair of the Committee, has acknowledged that this piece of legislation is viewed as the main barrier to Ireland’s ratification of the Convention on the Rights of Persons with Disabilities, and has stated: “We hope that the contribution made by this Committee will help to create a progressive law which ultimately enables Ireland to ratify this crucial convention.” This is an important point to emphasise – as while calls for the legislation to be published have been repeatedly made since Ireland signed the Convention in 2007, it is vital that such legislation is actually compliant with the Convention, otherwise, it will not achieve the desired goal, which is to enable Ireland to ratify the CRPD.

Article 12 of the UN Convention contains what some consider to be quite a radical view of capacity – i.e. that persons with disabilities enjoy legal capacity on an equal basis with others. No mention of mental capacity is made in Article 12, and this appears to be quite deliberate – so the Article can be interpreted to mean that regardless of mental capacity (i.e. decision-making ability), all persons are entitled to legal capacity – that is, the right to make their own decisions and have such decisions recognised by law. The Committee on the Rights of Persons with Disabilities, to which Ireland will report once we ratify, has already made a number of pronouncements on Article 12. The Committee has recently considered the reports of Spain and Tunisia – both countries still operate guardianship systems for people with disabilities which remove or restrict the person’s right to make decisions. In both cases, the Committee expressed concern “that no measures have been undertaken to replace substitute decision-making by supported decision-making in the exercise of legal capacity”. With respect to both countries, the Committee recommended that the state “review the laws allowing for guardianship and trusteeship, and take action to develop laws and policies to replace regimes of substitute decision-making by supported decision-making, which respects the person’s autonomy, will and preferences.”

On Monday, the Council of Europe’s High Commissioner on Human Rights published an Issues Paper on Legal Capacity, entitled: Who Gets to Decide? Right to Legal Capacity for Persons with Intellectual and Psychosocial Disabilities. This paper contains strong recommendations in respect of legal capacity reform – both in terms of the trajectory of the European Court of Human Rights (particularly relevant given recent decisions in Stanev and DD), and the Convention on the Rights of Persons with Disabilities. In this issues paper, the Commissioner calls on member states of the Council of Europe to:
    1. Ratify the UN Convention on the Rights of Persons with Disabilities and its Optional Protocol.

    2. Review existing legislation on legal capacity in the light of current human rights standards and with particular reference to Article 12 of the UN Convention on the Rights of Persons with Disabilities. The review should identify and remedy possible flaws and gaps depriving persons with disabilities of their human rights in relation to legislation concerning, inter alia, guardianship, voting rights and compulsory psychiatric care and treatment.

    3. Abolish mechanisms providing for full incapacitation and plenary guardianship.

    4. Ensure that persons with disabilities enjoy the rights to property, including the right to inherit property and to control their own financial affairs, to family life, to consent to or reject medical interventions, to vote, to associate freely and to access justice on an equal basis with others. No one should be automatically deprived of these rights because of an impairment or disability or due to being subjected to guardianship.

    5. Review judicial procedures to guarantee that a person who is placed under guardianship has the possibility to take legal proceedings to challenge the guardianship or the way it is administrated as long as guardianship regimes still remain valid.

    6. End ‘voluntary’ placements of persons in closed wards and social care homes against the person’s will but with the consent of guardians or legal representatives. Placement in closed settings without the consent of the individual concerned should always be considered a deprivation of liberty and subjected to the safeguards established under Article 5 of the European Convention on Human Rights.

    7. Develop supported decision-making alternatives for those who want assistance in making decisions or communicating them to others. Such alternatives should be easily accessible for those in need and provided on a voluntary basis.

    8. Establish robust safeguards to ensure that any support provided respects the person receiving it and his or her preferences, is free of conflict of interests and is subject to regular judicial review. The individual concerned should have the right to participate in any review proceedings along with the right to adequate legal representation.

    9. Create a legal obligation for governmental and local authorities, the judiciary, health care, financial, insurance and other service providers to provide reasonable accommodation to persons with disabilities who wish to access their services. Reasonable accommodation includes the provision of information in plain language and the acceptance of a support person communicating the will of the individual concerned.

    10. Involve persons with intellectual and psychosocial disabilities and the organisations representing them actively in the process of reforming legislation on legal capacity and developing supported decision-making alternatives.


These recommendations indicate that  guardianship can not be viewed as a human rights-based response to challenges people may face in exercising their legal capacity, and that the mental health system will also have to change to ensure that the individual’s wishes in terms of treatment are respected. It also emphasises that community-based supports need to be put in place to enable people to exercise meaningful choices. Finally, this paper reaffirms the position of the Committee on the Rights of Persons with Disabilities that substituted decision-making mechanisms, such as guardianship, need to be replace by supported decision-making, where a person can choose people she trusts to provide assistance in making decisions, and communicating these decisions to others. Of course, all systems in relation to decision-making need to include safeguards to ensure that the individual’s rights are respected and that no one is subject to undue influence, exploitation or abuse.

It will be interesting to follow the submissions made to the Oireachtas Committee on Justice, Defence and Equality on the issues which the forthcoming legislation should address. Since the Bill has not yet been published it is not clear to what extent it follows this new thinking about supported decision-making; however, the Scheme of the Mental Capacity Bill published in 2008 did not envisage the introduction of supported decision-making. The Committee hearings will be broadcast live at 2.30pm and can be viewed at the following link.
Justice Committee Hearings on Capacity Legislation

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