Yesterday, the Department of Health published its General Scheme for Advance Directives – a proposed addition to the Assisted Decision-Making (Capacity) Bill 2013, to be made at Committee stage. The publication of the scheme is certainly welcome, as is the opportunity for individuals to provide submissions to the Department on the Scheme, which will hopefully inform the final version introduced during Committee stage of the Bill.
There are a number of positive aspects to the proposal from a human rights perspective – most notably that the opportunity to make an advance directive will be open to individuals who wish to create these binding documents for both physical and mental healthcare decisions. Similarly, the scheme provides that it will be possible for an individual to refuse medical treatment, even if to do so might result in death. However, there are some important caveats on these positive provisions which merit further discussion. Continue reading “Advance Directives and Ireland's New Capacity Legislation”
On last night’s Late Debate programme on Radio One (which you can listen back to here), Minister Kathleen Lynch was asked to comment on the publication of the Assisted Decision-Making (Capacity) Bill (from about minute 52 onwards). This Bill has been placed in the A list of legislative proposals and the government has stated that is key to Ireland’s ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD). Continue reading “Ireland's Assisted Decision-Making Bill and the UN Convention”
Last week the European Court of Human Rights published its decision in the case of Lashin v Russia. This judgment is one of a series of recent decisions from the Court which address issues of denial of legal capacity and loss of liberty through detention which was consented to by a guardian (see for example Stanev v Bulgaria, DD v Lithuania, Sykora v Czech Republic). However, while cases such as Stanev and Sykora have somewhat progressed the Court’s approach to denial of legal capacity (in particular by finding that such a denial can constitute a breach of Article 8 in Sykora), arguably, Lashin regresses the Court’s position by finding that depriving someone of her legal capacity and maintaining that status may pursue a number of legitimate aims, and that some form of limitation of legal capacity, such as partial guardianship, may be necessary for ‘mentally ill persons.’ This judgment brings to the fore the inherent tension between the ECHR and the UN Convention on the Rights of Persons with Disabilities – already commented on by Phil Fennell and Peter Bartlett, among others.
Continue reading “New ECHR decision on legal capacity”
Last week, the Centre for Disability Law and Policy at NUIG hosted its 4th international summer school on the topic of ‘The Convention on the Rights of Persons with Disabilities: How to Use It’ (see here for programme). Podcasts of the various seminars given at the summer school will be uploaded to the CDLP website in the coming days for anyone who is interested, but at this point I wanted to provide some of my own personal reflections on the new ideas and theories presented at the summer school and how these might shape current trends in international and comparative disability law. I’ve chosen to focus on three seminars – led by Jerome Bickenbach on transformative values, Michael Bach on legal capacity and personhood and Theresia Degener on intersectionality, identity and discrimination – but the full range of videos of the presentations can be viewed (here) for those interested. Continue reading “Reflections on the 4th International Disability Law Summer School”
In light of the Oireachtas Justice Committee’s report on the Mental Capacity Bill which will be launched later today, I wanted to reflect on two recent ECHR cases which have demonstrated how a denial of legal capacity to disabled people, through the imposition of an adult guardian, leads to the violation of other fundamental rights – such as the right to a fair trial, the right to be informed of decisions made about the person, the right to liberty and freedom of movement, and the right to freedom from inhuman and degrading treatment or punishment. These cases – Stanev v Bulgaria and DD v Lithuania have already generated significant commentary in the disability rights movement (see here and here) – as these cases represent the first time in which the European Court has acknowledged that detention of a person in a social care home, rather than a psychiatric hospital or institution can constitute a breach of Article 5. As Ireland moves towards reforming its law on capacity, it is worth bearing in mind the comments which have been made by the European Court, especially with regard to the ways in which adult guardianship can violate the rights of disabled people. Continue reading “ECHR Cases on Denial of Legal Capacity to Persons with Disabilities”
Last month, the Oireachtas Joint Committee on Justice, Defence and Equality last month held its second and final hearing on the proposed Mental Capacity Bill. The hearings focused on proposed amendments to the 2008 Scheme of the Mental Capacity Bill – the only published document to date which gives a concrete outline of what the legislation might look like. The 2008 Scheme has been widely criticised, by the Law Reform Commission, Amnesty International, the Alzheimers Society of Ireland and others, for failing to adequately protect the rights of adults who might become subject to guardianship – and for adopting an inflexible courts-based process for determinations relating to decision-making.
Continue reading “Oireachtas Justice Committee concludes 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.
Continue reading “Justice Committee Hearings on Capacity Legislation”