Within the UK, the issue of “capacity” falls within the Mental Capacity Act 2005 and a recent post considered its application in relation to the Abortion Act 1967 in the cases of Re SB (A patient; capacity to consent to termination)  EWHC 1417 (COP) 21 May 2013 and Re P (abortion) (2013) MHLO 1 (COP). In the former, Holman J reached a different overall conclusion as to capacity from that of the psychiatrists, and also of the husband and the mother, [at 36 and 37]. Whereas the medical experts’ conclusion was based upon “evidence within their professional domain”, which the judge unreservedly accepted, his was based upon the provisions of within the legislation.
This situation in Ireland is different where the legislation in this area is largely based on the Lunacy Regulation (Ireland) Act 1871, which the government now accepts is “highly unsuitable for the 21st century”. The law discriminates against all of those with intellectual disabilities, by classifying them under the same, umbrella term “lunatic”, which includes people with an intellectual disability, serious mental health problems, dementia and acquired brain injury. Most problematic is the Ward of Court system, whereby for those who are made a ‘Ward of Court’, all decisions about their lives and property, from medical and money decisions, to leaving the country and marrying are made by the Court. Furthermore, anyone so defined may not partake in sexual acts of any nature, as it is deemed to be a crime under Section 5 of the Criminal Law Act.
Although Ireland signed the UN Convention on the Rights of Persons with Disabilities, (CRPD), in December 2007, a significant obstacle to ratifying it has been the absence of modern national legislation on legal capacity, and on 17 July the government published the Assisted Decision-Making (Capacity) Bill 2013, a linked Explanatory Memorandum and Press Release. The objective of the Bill is to:
- replace the Wards of Court system with a legal framework to support people in exercising their decision-making capacity so that they can better manage their personal welfare, property and financial affairs
- change the existing law on capacity from the current “all or nothing” status approach to a functional one, whereby decision-making capacity is assessed on an issue-and time-specific basis
- provide a range of supports, on a continuum of intervention levels (for instance, decision-making assistance, co-decision-making, decision-making representation, informal support), to support people in maximising their decision-making capability
- provide, in circumstances where it is not possible for a person to exercise their capacity even with support, that another person can be appointed by the Court to act as their representative with regard to specified matters
- provide that the Circuit Court will have jurisdiction on this area giving court-backed protection to the options chosen by people
- clarify the law for carers who take on responsibility for persons who need help in making decisions
- establish an Office of Public Guardian within the Courts Service, with supervisory powers to protect vulnerable persons
- subsume into the Bill the provisions in the Powers of Attorney Act 1996 on enduring powers in order to bring them into line with the general principles and safeguards in the Bill.
In her analysis of the Bill on the Human Rights Ireland blog, Eilionoir Flynn notes that under the definition of “capacity” in section 3, the proposed legislation “continues to view mental capacity as a precondition for legal capacity, and in that sense, it is problematic from a human rights perspective”. Furthermore, this approach “continues to provide a role for substitute decision-making where individuals are found to lack mental capacity”, a practice that has repeatedly been criticized by the UN Committee on the Rights of Persons with Disabilities.
Other concerns include: the criteria and operation of co-decision-making; the “old-style thinking” in the establishment of an Office of Public Guardian; the wide range of powers granted to “informal decision-makers” without conferring any particular authority on them, or ascertaining whether there might be a conflict of interest, or supervising and monitoring their actions; and the exemption of a large portion of existing laws from the impact of new Bill. With regard to the latter, many of the exempted provisions apply more restrictive approaches to capacity than the proposed legislation, and these would not be compliant with Article 12 of the UN Convention, such as section 5 of the Criminal Law (Sexual Offences) Act 1993.