Committee Stage Amendments to the Capacity Bill – Semantic Change or Real Reform?

committeeTomorrow, 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 This Bill seeks to abolish the outdated ward of court system which currently provides the only mechanism in Irish law for removing the legal capacity of an adult and appointing a substitute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.

Committee Stage Amendments to the Capacity Bill – Semantic Change or Real Reform?

Legal Capacity and Consent to Sex – Reform for People with Disabilities

Today Senator Katherine Zappone published a Private Members Bill which aims to reform the law on consent to sex as it affects people with disabilities – particularly section 5 of the Criminal Law (Sexual Offences) Act 1993, which I have written about here previously. Continue reading “Legal Capacity and Consent to Sex – Reform for People with Disabilities”

Legal Capacity and Consent to Sex – Reform for People with Disabilities

Sexual Offences, Capacity and Disability – A Call for Rights-Based Law Reform

This post is inspired by the excellent RTE 1 documentary ‘Somebody to Love’ which aired last night and provided a sensitive and thought-provoking exploration of disability, relationships and sexuality. If you haven’t already watched the programme you can catch it on the RTE player here. At several points during the programme the participants mentioned the law which criminalises sexual activity with a person with an intellectual disability – which is worth explaining in further detail here.

Continue reading “Sexual Offences, Capacity and Disability – A Call for Rights-Based Law Reform”

Sexual Offences, Capacity and Disability – A Call for Rights-Based Law Reform

Assisted Decision-Making (Capacity) Bill 2013 finally published

oireachtasThe long-awaited Assisted Decision-Making (Capacity) Bill 2013 has been published this morning. Although this reform is a long time in the making, many civil society organisations such as the Centre for Disability Law and Policy and Amnesty Ireland cautiously supported the delay on the basis that the extra time would be used to get the legislation ‘right’ and ensure as far as possible that it would comply with the UN Convention on the Rights of Persons with Disabilities – especially since this legislation was repeatedly referred to by government as the final step to be taken before Ireland would be ready to ratify this Convention. A positive process of engagement with civil society was adopted by both the Oireachtas Justice Committee – in finalizing its report to the Minister as to what should be contained in the legislation, and by officials from government departments responsible for drafting the legislation. A consensus on the need for the legislation to be premised on support to exercise legal capacity was reached by all sides, and this is a marked improvement from the automatic removal of legal capacity based on a label of disability which had prevailed for so long under the Ward of Court system.

Continue reading “Assisted Decision-Making (Capacity) Bill 2013 finally published”

Assisted Decision-Making (Capacity) Bill 2013 finally published

MX v HSE – Human Rights and Consent to Treatment

Last week the High Court issued a significant judgment in the case of MX v HSE. An earlier judgment in the same case on an issue of judicial review is available here. The most recent judgment addresses issues of constitutionality and compliance with the European Convention on Human Rights regarding the treatment of a patient in the Central Mental Hospital without her consent. A novel argument was made in the case regarding the direct effect of the UN Convention on the Rights of Persons with Disabilities following its conclusion by the European Union – even though Ireland has not yet ratified the Convention. This argument was however dismissed by MacMenamin J, although he acknowledged the guidance provided by the Convention in relation to issues of legal capacity.

 

I will focus my analysis of the case here on the issues of the plaintiff’s perceived lack of mental capacity to consent to treatment, and the availability of independent review of her treatment, with a view to outlining how the UN Convention takes us in a different direction from the procedural safeguards provided for in the ECHR, and will discuss how a new approach to consent to treatment, and support to exercise legal capacity is required.

Continue reading “MX v HSE – Human Rights and Consent to Treatment”

MX v HSE – Human Rights and Consent to Treatment

Amnesty International CDLP Seminar on Legal Capacity

The Centre for Disability Law and Policy (NUI Galway) and Amnesty International (Ireland) held a seminar today on getting legal capacity law right.  The seminar can be viewed here.  The seminar heard from Oliver Lewis from MDAC who spoke about the CRPD in international Best Practice on legal capacity law.  Christine Gordon who spoke about the lessons from British Columbia on supported decision-making.  Professor Gerard Quinn spoke about the challenges in realising supported decision-making.  The seminar was chaired by Colm O’Gorman the Executive Director, Amnesty International (Ireland) and was addressed by Kathleen Lynch the Minister for Disability, Equality, Mental Health and Older People.  One of the really interesting aspects of the seminar was the contribution from the “experts through experience” who spoke of their perspectives on legal capacity when decision-making is called into question.  Mary Farrell spoke about her experience in terms of her son who was made a Ward of Court following a High Court Award of damages for an acquired brain injury.  Paul Alford spoke about his experience of moving from an institutional setting to living independently in the community and making his own decisions about how he lived his life.  Bill Lloyd an advocate for older persons spoke about the deficiencies of Irish law in respecting the decision-making of one of his clients who was diagnosed with dementia.  Jim Walsh shared his experience and perspectives on decision-making and persons seen as having a mental health problem.

Amnesty International CDLP Seminar on Legal Capacity

Disability cases pending before the European Court of Human Rights

At a workshop on the rights of persons with disabilities with national human rights structures (ombudsman offices and national human rights institutions) in the Council of Europe in Kiev in May, two cases currently pending before the European Court of Human Rights were brought to my attention. The first case, Gauer v France, relates to the sterilisation of young women with disabilities, and the second case, RP v UK, concerns the removal of a child with physical disabilities from the care of its mother (a young woman with intellectual disability) without her consent to the adoption of the child. Continue reading “Disability cases pending before the European Court of Human Rights”

Disability cases pending before the European Court of Human Rights