Darius Whelan, Faculty of Law,

UCC

Brothers of Charity

Feb. 2014

Legal Capacity

and the

Assisted Decision-Making (Capacity) Bill 2013

• 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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Summary

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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

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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• 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)

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)

Progress towards reform

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Assisted Decision-Making (Capacity) Bill 2013

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

“Capacity”

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• 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 >

Guiding Principles

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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, decision-making rep. or attorney

Intervener may consider views of carers; people with bona fide interest in person’s welfare; healthcare professionals

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Part 7 - ss.53-54 • May take actions re personal welfare,

including healthcare and treatment

Informal decision-making

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• 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

Decision-making assistant (DMA)

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• Person appoints CDM to jointly make decisions with them

• CDM must be trusted relative/ friend • Circuit Court approves the co-decision-

making agreement

Co-Decision Maker (CDM)

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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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0 Extends EPAs to deal with healthcare decisions – giving or refusing treatment, other than refusing life-sustaining treatment

0 Attorneys will apply to office of Public Guardian for registration of EPA

0 Annual reports to Public Guardian

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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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Commentary on Bill: 0 Blog Posts by Lucy Series; Eilionóir Flynn; Darius

Whelan; Mary Donnelly

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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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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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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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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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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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