Amanda Keeling – Capacity Law and the Debate in Ireland

I’ve been following with some interest the progress of the Mental Capacity Bill currently making its way through the Oireachtas in the Republic of Ireland.  Ireland is currently in the position, as the UK was several years ago, of bringing its mental capacity law up to date, in a modern, workable form.  The result was the Mental Capacity And Guardianship Bill 2008, which looked a lot like the English Mental Capacity Act 2005, but it has been slow progress, and it is currently going through committee stages in the Oireachtas.

The reason why this Bill has become so interesting is because, while the original Bill looked a lot like the MCA, the intervening time has seen the UN Convention on the Rights of People with Disabilities finalised and signed by member states, and it is against this background which the Irish legislation is now being debated.  The CRPD, as I have discussed elsewhere on this blog and others in more detail elsewhere, presents some major challenges for capacity legislation, and it is interesting to see how Ireland are dealing with this.

Earlier this month, the Oireachtas Committee on Justice, Defence and Equality released its report on the proposed legislation.  The report stresses the need for a rights-based approach to the change in legislation, reflecting the move in the CRPD from paternalism to respect for the individual’s ‘will and preference’.  The starting point for any new legislation must be the recognition that all people have legal capacity, and are capable of making decisions.

The current position in Ireland is on a system of wardship, whereby an individual’s capacity is assessed, and if found lacking risks complete removal of autonomy over almost every aspect of the their life.  That this system needs to be replaced is not really controversial, and the Committee are clear that this needs to be changed as a matter of urgency.  However, in their consideration of the submissions made on the draft legislation, there were two particular points of interest for those with an interest in what changes might be made in England and Wales following the CRPD (in particular the Office for Disability Issues, who are under the impression that the MCA is perfectly compatible).

The first was the discussion around best interests.  This is, of course, the principle on which any substitute decisions must be made under the MCA, when someone is found to lack capacity.  Under the MCA, the best interests test is objective, with the individual’s wishes and preferences only a point of consideration amongst a list of others, including a balance of these wishes against any potential harm.  The report highlighted the risks of this approach, some of which I discussed in my last blog post, where the ‘best interests’ can end up being just what the professional thinks is best.  Such a model is, it was suggested, paternalistic and outdated, and in real need of replacement.

What would it be replaced with?  A best interests model is only required when it is found that an individual cannot make a decision, and one must be made for them.  The Committee report commented on the need for supported decision-making, and a move away from substitute decision-making.  This is the most challenging part of Article 12 for States; does the CRPD require the removal of all substitute decision-making frameworks, or is it aimed more at removing the blanket findings of incapacity, such as the Wardship framework currently in operation in Ireland?  The Committee suggested that any reference to substitute decision-making should be in the sense of ‘last resort’, and inclusion of provisions regarding supported decision-making as a first priority needed to be made.

It will be interesting to see what the Irish Government makes of these observations, and what a completed draft of the Bill will look like.  Any significant change should be keenly watched from these shores.

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2 Comments

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2 responses to “Amanda Keeling – Capacity Law and the Debate in Ireland

  1. Rosemary Cantwell

    24 August 2012
    Dear Amanda
    I am interested in this concept of what constitutes “mental capacity” for in theory, if anyone has a momentary lapse of concentration and is deemed thereby, on forensic examination, to have been “incapacitated” irrespective of what the person has been previously or afterwards, then the person with the temporarily incapacitated person becomes de facto responsible for that person’s actions, and could be charged with a criminal act for not acting in that person’s best interests.

    Taken to its logical conclusions, if a person is ill, that person is then “vulnerable” and if the person with that person does not get a doctor to help, even if it is against the patient’s wishes, then that person could be charged with a criminal act for not acting in that person’s “Best Interests”.

    In the 19th Century in England it was deemed that a brother did not owe any duty of care to his disabled brother who shared the same property as him, even though he was entirely dependent upon him.

    We now seem to have gone to the other extreme whereby everyone is potentially another person’s responsibility and so, if I happen to be walking with a friend who suddenly becomes mentally frail and dashes across the road, it will be me that ends up in police custody for not preventing my friend from acting in this way.

    This may seem absurd, but theoretically possible.

    I believe that the MCA 2005 really is not fit for purpose. Kate Lumsdon warned “Prosecutors Beware”. I agree.

    As the cartoon character Heinz Kiosk said, “We are all guilty”.

    Rosemary

  2. Dear Rosemary,
    I think it would require more than only a momentary lapse of concentration for someone to be deemed to lack capacity; the Act requires an impairment or disturbance in the functioning of the mind or brain, which needs to be shown to be more substantial than simply lapsed concentration. It would have to be some kind of mental disorder, a learning disability, or perhaps a brain injury such as a stroke.

    Regards the criminal provision in s. 44(2) requires ill-treatment or wilful neglect; I’m not sure that failing to realise in the split second that someone makes an unwise decision due to a stroke, or some other quick acting effect on the brain, would be enough to pass the threshold.

    If a person was ill, and lacked capacity for whatever reason, and as a their carer you didn’t seek medical advice as to the best course of action, you may be considered neglectful, but I think it would be a hard case to call. You, as the carer, would be the ‘decision-maker’ under the Act, and if you can show that you have made any decisions within the Best Interests framework, you would likely be protected. A Court may disagree with your assessment, but that wouldn’t necessarily find you with problems of negligence.

    There have been remarkably few cases under the MCA as a result of this – it’s taken something like Winterbourne View, where there are clear examples of wilful neglect, to really meet the CPS’s threshold for s. 44. Disclaimer, however, in that I am not a criminal lawyer, so I wouldn’t consider this to be 100% accurate – merely my own interpretation of the Act.

    Amanda

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