The
following post was prepared by Jillian Crowley an exchange LLB student from
the USA who is studying this semester in Griffith College Dublin. (Please note that references to disability
throughout the piece refers to conditions which alter a person’s ability to
make decisions)
Mental
Capacity Bill 2013
This piece focuses mainly on the Mental Capacity
Bill 2013, how the provisions of the Bill will operate, how this will alter
existing law, some critiques of the provisions of the Bill, and in addition
some information is provided in relation to other relevant legal provisions
dealing with capacity issues.
The Mental
Capacity Bill of 2013 was advanced to provide a modern framework supporting
decision making for adults who have difficulty in making decisions unaided.
This Bill would revise and repeal past acts as well as cause other acts to
cease having effect in this area. For example the Marriage of Lunatics Act 1811
would be repealed and the Lunacy Regulation Act 1871 would cease to have effect.
Other changes will also ensue; these changes consist of the replacement of
wards of court system for adults, an automatic review of all those under ward
ship, and an introduction of power to make legally binding agreements with
supporters for assistance in decision making. The Mental Capacity Bill of 2013 seems
to be a step in the right direction for those people who have difficulty making
decisions on their own.
The Mental Capacity Bill of 2013 introduces three
levels of Assistance. The first level is named Assisted Decision Making; this
level means that individuals voluntarily appoint someone to assist with
specific decisions relating to personal welfare or property and affairs. The
second level is Co-decision making. Co-decision making allows the Circuit court
to declare that an individual’s capacity is reduced for specific decisions but
he/she would have capacity for those decisions if he/she appointed a Co-decision
maker to share authority for those decisions. The final and third level of
assistance is Decision Making Representatives. Decision Making Representatives operate
as a form of substitute decision making for specific decisions. This level of
assistance is used rarely and creates new provisions for an enduring power of
attorney and informal decision making on personal welfare matters.
The Mental Capacity Bill can be considered in the
context of a number of advocacy groups which have an interest in this area and
who have made recommendations in relation to law reform Amongst these groups
are Amnesty International, the Mental Health Reform Group, and the Centre for
Disability Law and Policy. The Mental Health Reform group is set up to promote
improved mental health service in Ireland and have recommended that capacity
legislation provide a supported decision making stance. Another recommendation
made by them was to have the term voluntary patient in mental health
legislation be amended to refer solely to persons who have the capacity to
consent to their admission and treatment. The second group Amnesty
International recommended that the objective of the Bill be to enhance capacity
and enable individuals to make decisions affecting their lives. They proposed
that the Bill provide for independent capacity advocacy service and capacity
advocates to guarantee that each individual receives support for any decisions
made. Further they recommended that the procedure allowing for the involuntary
administration of medication should stop, if a person regains capacity at any
time, until that person consents to receive the medication. Thirdly, the Centre
for Disability Law and Policy (CDLP) discusses legal capacity and the
international shift towards a support based system which allows a person with a
disability to make their own decisions. Their submission states current Irish
law on legal capacity can be challenged in the European Court of Human Rights. The
views of these three groups highlight the shortcomings of the bill and its
compliance with the Convention on the Rights of Persons with Disabilities, and
the European Convention on Human Rights. These three groups have played a major
role in emphasizing the key challenges in this area, while at the same time
bringing forward new ideas to improve the provisions of the Mental Capacity
Bill.
The idea of capacity plays a great role in specific
areas such as voting, marriage, medical decision making, and sexual
relationships. Voting is the first area of capacity, any legal citizen above
the age of eighteen is eligible to vote. In circumstances when a person has a
disability special accommodations have been set up to facilitate this person.
For example, voting at an alternative polling station if the local station is
inaccessible, being helped at the polling station by a companion or presiding
officer if needed, vote by post, and voting at a hospital, nursing home or
similar institution if that is their principal residence. A companion voter may
assist a person with intellectual disability, literacy problems, visual
impairments and other physical disabilities. The companion voter may assist the
individual in placing the marks on the ballot and placing the ballot within the
box, but this person must not choose the candidates which this individual votes
for. A person with a disability access to voting, if assistance is required,
may be refused if the presiding officer establishes that this disabled person
lacks the capacity to vote. Marriage is the next form of capacity where the requirements
for marriages are having the capacity to marry, freely consenting to marriage,
and following all necessary formalities. Consent to marriage cannot consist of
any form of duress or pressure, if someone consents to marriage under a threat
or intimidation then the marriage is void. Without permission from the court, both
parties in a marriage must exceed the age of eighteen. A person’s capacity to
marry is looked at on the understanding of the nature and effects of marriage,
as well as understanding the binding nature of the contract of marriage. Wards
of the Court are not permitted to marry but Wardship does not invalidate an
existing marriage. Medical decisions are made only with the informed consent of
a person who is being treated. Exceptions are made in emergency treatment to
save a life if that person is unable to communicate or if a medical
practitioner is acting under a Court order. A valid consent consists of consent
not made under a threat or inducement, given when a patient was well informed
and can understand, and a patient can understand the likely effects of the
medical decision. Everyone is given the
presumption of capacity for medical decisions, this presumption can only be
removed if there is clear evidence that the person lacks capacity, this cannot
be determined solely with reference to the person having a disability. Family
are not given any sort of legal rights to make decisions for any adults whether
the person has a disability or not, there is no requirement for medical
practitioners to follow instructions from family members, merely to consult
with them. Lastly, sexual relationships between adults are lawful as long as
two consenting adults over the age of seventeen or are married are engaging in
these sexual relationships. The Criminal Law Sexual Offenses Act 1993 was
created to specifically deal with sexual relationships regarding people with
disabilities. This act makes it an offence to have or attempt to have sexual
intercourse with a mentally impaired person outside the realms of marriage.
Sexual acts other than intercourse are not included as criminal offences under
this section. These are specific examples of rules laid down in law to deal
with capacity issues which arise in defined circumstances.
Although, the 2013 Bill is a welcome
reform, its provisions are not without difficulty. Firstly, the Bill is still
premised on the notion of mental capacity. Within the Bill there is no
distinction between mental capacity and legal capacity. Mental capacity is
defined by the decision making capacity of the person while on the other hand
legal capacity focuses on the recognition of a holder of rights and an actor
under the law. Historically, mental capacity or lack thereof has resulted in
the removal of any legal capacity affected for people with disabilities. Yet,
the tests of mental capacity within the Bill appear prima facie to be
disability neutral; they do not need a diagnosis of disability as part of the
assessment determining mental capacity. The assessment focuses more on people
with cognitive disabilities such as psycho-social disabilities, neurological
disabilities and forms of dementia to undergo tests for mental capacity.
Section 3 of the bill defines “capacity” based on a functional assessment.
Decisions made by a person who lacks mental capacity will lack legal force while
a decision of a person who has mental capacity will be respected by the law;
marriage or entering into a contract or refusing medical treatment are all
examples.
The second concern is that the Bill will substitute
decision making as opposed to supported decision making. Substitute decision
making entails appointing a substitute decision maker such as a power of
attorney for financial decisions or a trusted relative to handle your finances.
It is never a good thought to think that there may be a time in one’s life
where they are no longer capable of handling certain decisions on your own, but
it is always necessary for account for this unpleasant situation to occur.
Therefore, choosing a person such as a trusted family member or friend that
will be able to make legal, financial, or medical decisions for you according
to your wishes is what substitute decision making is all about. A power of
attorney is a legal document that appoints another person called the attorney
to deal with your property on your behalf. A power of attorney will terminate
if you become mentally incapable, to continue this power of attorney, thus if
you are likely to become mentally incapable you need to make an enduring power
of attorney. This legal document appoints a committee guardian or trusted adult
to make decisions for someone who is not mentally capable to make his or her
own decisions. Turning to Co-decision making, Co-decision makers chosen by
court are only forced to agree with the person they are assisting, if a
reasonable person could have made the relevant decision and no harm to the
appointer or others will result from the decision. The third type of
assistance, supported decision making, always operates in favor of the person
with the disability who will be affected by the decisions. The individual is
the decision maker and the support person explains the issues at hand and when
necessary will interpret the most favorable outcome for the supported person.
Even in times when the supported person is in full need of total support the
individual should exercise her legal capacity to the greatest extent possible
to display the wishes of the supported person. There are many different forms
of supported decision making for instance those assisting a person may communicate
the intentions of the individual to another in order to help him or her
understand the various choices presented. They may help another recognise that
a person with disabilities is also a human being with interests, wants and
needs in life and is someone capable of using her or his legal capacity. The
main problem with supported decision making is that there is generally no clear
policy framework, at this time guardianship laws and practice still dominate
all others. Difficulties emerge when designating and creating support networks
when an individual is unable to identify anyone who is a trusted person or
people to themselves. Also, those in institutional settings are often denied
support. The main differences between substitute decisions making and supported
decision making is that in the later the person being assisted is recognised as
holding capacity, whereas in the former there is the use of advance commands,
friends, or court appointed guardians, where the guardian has court authorized
power to make decisions in the individual’s best interest according to his or
her own wishes. There are laws put in place to protect against abuse of these
support mechanisms.
Thirdly a major concern with the Mental Capacity
Bill of 2013 is informal decision makers and the application of the Bill to
other areas of law. Part seven of the Mental Capacity Bill gives legal effect
to the daily decisions made by these informal decision makers to make personal
decisions without formally designated assistants, co-decision makers, or
decision making representatives. These decisions could be anywhere from with
whom these people live with or where they reside, to how they spend their
money, even decisions about the amount of support they receive during their
daily activities (i.e. eating, dressing, cleaning, bathing, etc. ). This
provision of the Bill will grant a wide range of power to individuals without
conferring authority on them. There is no sense of supervision or monitoring
the actions of the informal decision makers. The requirements of the informal
decisions makers mirror those of the representative decision makers which
indicate a form of guardianship or substitute decision making without any court
approval or public oversight. In a way this form of informal decision making
can present a serious concern for human rights.
Finally there is no specific reference to best
interests within the Mental Capacity Bill. The best interests’ standard is used
as the primary means for decision making while still giving weight to the
wishes of the individuals. Article twelve makes no mention of the best
interests and instead requires that the State “respect the rights, will, and
preferences” of the individual. This is a powerful shift in the decision making
assistance. In the best interests standard it is decision making from outside
the will of the individual, which substitutes the decisions of the person with
that of another, acting in the best interests of the person being assisted. Using
the rights, will and preferences standard, the goal is shifted to develop and
express long and short terms desires of the person being assisted. This ensures
that people who need assistance in decision making are able to receive
assistance, be respected as persons before the law and have their will and
preferences realised similarly to any other person, noting of course that such
personal preferences might not always be in their best interests. The interface between the standard referred
to in the Bill and the best interests of the person needs to be clarified to
ensure the effective operation of the new regime. The Mental Capacity Bill will
create two conceptual changes in Ireland. First Ireland will be moved from a
status based approach to a functional approach and secondly the bill will
emphasize the will and preference rather than best interest.
The Mental Capacity Bill of 2013 seems to be a step
in the right direction for those deemed incapable of supporting themselves and
with some minor changes and clarification to address the aforementioned
difficulties the Bill could represent a positive change in the approach of the
law to assisting persons with diminished capacity.
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