Presentation to Brothers of Charity Southern Services, February 2014

1. Legal Capacity
and the
Assisted Decision-Making
(Capacity) Bill 2013
Darius Whelan,
Faculty of Law,
UCC
Brothers of
Charity
Feb. 2014

2. Summary
• Current Law
– Wards of Court
– Enduring Powers of Attorney
(EPAs)
• Progress towards Reform
• Proposed New Law:
– Assisted Decision-Making
(Capacity) Bill 2013
– Commentary on Bill
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3. Wards of
Court
• Lunacy Regulation (Ireland) Act 1871
• Person is “of unsound mind” and incapable of
managing his/her person or property
• Powers exercised by President of High Court and
Registrar of Wards of Court
• Procedures not robust; paternalistic legislation
• A “Committee” is appointed for the ward
– E.g. person’s spouse or a solicitor
• Committee deals with property of ward on ward’s
behalf
• Status approach to capacity
• The ward may not buy property, sell property,
travel abroad or marry
• But he/she may make a will assuming that
common law requirements for capacity are
satisfied
• No automatic reviews
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4. Powers of Attorney Act 1996
– A Power of Attorney appoints a person, called the donee or attorney,
and invests him/her with power to act either generally or in a manner
specified on behalf of the donor who gives the power
– The EPA allows power to continue after donor loses his/her mental
capacity and contains statement that donor intends power to be
effective during subsequent mental incapacity of donor
– When EPA is executed, it has no real legal effect. It will only come into
effect when it is registered
– Application to register may only be made when attorney has reason to
believe that donor is or is becoming mentally incapacitated
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5. • Once the EPA is registered, the attorney may
have power over the donor’s property,
financial and business affairs and personal
care decisions
• In Personal care decisions which involve
where the donor should live, donor’s diet and
dress, social welfare benefits, etc. the
attorney must make decisions in the best
interests of the donor.
• The personal care decisions do not currently
extend to decisions on medical treatment or
surgery (but see 2013 Bill below)
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6. Progress
towards
reform
Law Reform Commission:
• Consultation Paper on Law and the
Elderly (2003)
• Consultation Paper on Vulnerable Adults
and the Law: Capacity (2005)
• Report on Vulnerable Adults and the Law
(2005)
Department of Justice:
• Scheme of Mental Capacity Bill 2008
• Assisted Decision-Making (Capacity) Bill
2013
• Scheme for Advance Healthcare
Directives (Feb. 2014; submissions
accepted to 7 March 2014)
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7. Assisted Decision-Making
(Capacity) Bill 2013
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8. “Capacity”
Capacity means mental capacity
Capacity is to be construed functionally –
ability to understand nature and
consequences of decision at time decision is
made
Person lacks capacity if unable to
Understand info relevant to decision
Retain that information
Use/ weigh that information
Communicate his/her decision, perhaps with
assistance or through a third party
Bill recognises that sometimes person may only
be able to retain info for short period only
•
•
•
•
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9. Guiding
Principles
• Presumption of capacity unless
contrary shown
• All practicable steps must be taken to
help person to make decision
• Making an unwise decision does not
make person unable to make decision
• Interventions should only be made
where necessary
• Interventions must minimise
restrictions and respect dignity, bodily
integrity, privacy and autonomy
• Intervener shall facilitate person to
participate
… Cont’d >
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10. Intervener shall
• give effect to person’s past and present
will and preferences
• take into account person’s beliefs and
values
• consider views of any person named by
person
• consider views of decision-making
assistant, co-decision-maker, decisionmaking rep. or attorney
Intervener may consider views of carers;
people with bona fide interest in person’s
welfare; healthcare professionals
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11. Informal
decisionmaking
Part 7 - ss.53-54
• May take actions re personal welfare,
including healthcare and treatment
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12. Decisionmaking
assistant
(DMA)
• Person may appoint a DMA to assist
them in making decisions re personal
welfare or property and affairs or both
• Person must consider their capacity is in
question or may shortly be in question
• DMA can assist person in obtaining info;
explain info; ascertain will and
preferences of appointer; ensure
appointer’s decisions are implemented
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13. Co-Decision
Maker
(CDM)
• Person appoints CDM to jointly make
decisions with them
• CDM must be trusted relative/ friend
• Circuit Court approves the co-decisionmaking agreement
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14. 0 Circuit Court appoints DMR for person
0 Person lacks capacity to make decisions, even with CDM
0 DMR may make decisions
0 This is substitute decision-making
0 Supervised by office of Public Guardian
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15. 0 Extends EPAs to deal with healthcare decisions –
giving or refusing treatment, other than refusing lifesustaining treatment
0 Attorneys will apply to office of Public Guardian for
registration of EPA
0 Annual reports to Public Guardian
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16. Advance Healthcare Directives (“Living Wills”)
0 Not in 2013 Bill, but will be added later
0 Draft Scheme on AHD published Feb. 2014; submissions
sought to 7 March 2014
0 Primarily concern advance refusals of treatment (including
life-sustaining treatment)
0 Person can appoint patient-designated healthcare
representative (PDHR)
0 If person has appointed attorney, person may state that
attorney has powers of PDHR
0 Person may revoke AHD
0 Does not apply if admitted under Mental Health Act 2001
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17. Commentary on Bill:
0 Blog Posts by Lucy Series; Eilionóir Flynn; Darius
Whelan; Mary Donnelly
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18. 0 No explicit reference to "best interests" - a major
advance on the 2008 Heads of the Bill.
0 The "best interests" principle has been interpreted in
such a paternalistic manner by the Irish courts that it
would have been unworkable in the Capacity Bill.
What's more, it's out of step with modern thinking on
the Convention on the Rights of Persons with
Disabilities (CRPD).
0 The CRPD is explicitly recognised in the functions of
the Public Guardian (s.56).
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19. 0 It is a real pity that the Bill does not establish multidisciplinary
tribunals for dealing with applications regarding lack of capacity,
etc. A three-person tribunal similar to the Mental Health
Tribunals would be a more suitable forum than the Circuit Court
for resolution of these issues.
0 The Bill does not fully resolve the issue of people who lack
capacity and are admitted to a residential centre on a "voluntary"
basis but are de facto detained in the centre.
0 This is an issue which arises in the mental health context (and is
being addressed by the Steering Group on the Mental Health Act)
but also in other residential settings such as nursing homes,
social care institutions and centres for people with disabilities.
Ireland is not directly tackling the problem of the "Bournewood
gap" and ECHR case-law such as H.L. v UK; Stanev v Bulgaria; D.D.
v Lithuania and other cases.
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20. 0 The Bill creates forms of substitute decision-making,
most clearly with the court appointment of a
Decision-Making Representative (ss.23-27). Because
of Article 12 of the CRPD (which Ireland has not yet
ratified), regimes of substitute decision-making
should be avoided as much as possible and this Bill
may not go far enough to comply properly with the
CRPD (for more detailed critique on this aspect see
blog posts by Eilionóir Flynn and Lucy Series).
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21. 0 The Bill does not provide for automatic legal
representation in any category of case. Instead, the
person will need to apply for legal aid through the
civil legal aid legislation. This contrasts sharply with
the automatic representation under the Mental Health
Act 2001.
0 The rules on informal decision-making (ss.53-54)
need to be much tighter as there is a real danger that
these will be abused in practice. The experience with
the interpretation of the definition of the word
"voluntary" in the Mental Health Act 2001 shows that
sections of this kind can have major unintended
consequences.
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22. 0 Existing wards of court will not have their cases
reviewed for a period which may take as much as
three years (see s.35). In the case of children, this
period may (in theory) even be longer.
0 The Public Guardian will be appointed by the Courts
Service (s.55). The Minister for Justice and Equality
will need to approve the Office of Public Guardian's
codes of practice (s.63(5)). It would be better if the
office were renamed to replace the paternalistic word
"guardian". In addition, perhaps the office should be
on a more independent basis, like an ombudsman or
other independent office.
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