Minister Ahern announces proposals for a Mental Capacity Bill
The Minister for Justice, Equality and Law Reform, Mr Dermot Ahern T.D., today announced that the Government has approved his proposals for a Mental Capacity Bill. Detailed provisions of the Bill will now be drafted by the Office of the Attorney General.
The main purpose of the Bill is to reform the existing Wards of Court system in so far as it applies to adults, and effectively replace it with a modern statutory framework governing decision making on behalf of persons who lack capacity. The Bill will replace the Lunacy Regulation (Ireland) Act 1871, currently the chief legislation in this area.
Announcing the publication, Minister Ahern said: "The Government recognises that the current system is outdated and is, furthermore, incapable of coping with the existing and projected demographic growth of persons who lack capacity. This legislation will provide greater protection for a range of adult persons; from those with intellectual disabilities, persons suffering from dementia or mental illness and persons who have acquired brain injuries through trauma or accident."
A fundamental change from existing law and central to reform in the proposed Bill is in relation to what constitutes lack of capacity. The focus will be on the particular time when a decision has to be made and on the particular matter to which a decision relates, not on any general review of capacity to make decisions generally. This is a significant change from the current system, where a finding of incapacity applies to every decision a person may make and every legal transaction they may wish to enter into. In line with international best practice, as well as a recommendation of the Law Reform Commission, capacity will be understood as the ability to understand the nature and consequences of a decision in the context of available choices at the time the decision is to be made.
Continuing, the Minister said: "An important aspect of the Scheme of the Bill is that it clarifies the law for carers who take on responsibility for persons who lack capacity. It provides statutory protection against liability for certain acts done in connection with the care or treatment of another person and allows for normal everyday decisions to be made on their behalf without reference to the court. However, certain decisions, such as the question of the withdrawal of artificial life-saving treatment, will be reserved to the High Court. Provided the carer does not act negligently or criminally then no issue can arise in relation to the decisions they make on behalf of the person who lacks capacity."
In line with the ‘best interests’ guiding principle in the proposed Bill, the first port of call for an incapacitated person will be assisted decision making. The person must, so far as is reasonably practicable, be permitted and encouraged to participate, or to improve his or her ability to participate, as fully as possible in any act done for him or her and any decision affecting him or her. The next step would be substitute decision making, whether by the court or by a personal guardian appointed by the court. It is anticipated that where court intervention is required the court would make once-off decisions and where a number of on-going decisions are required that a guardian will be appointed by the court for that purpose.
The High Court and the Circuit Court will have concurrent jurisdiction for making decisions on capacity and appointing personal guardians under the Bill. It is anticipated that a substantial proportion of applications will be heard in the Circuit Court, ensuring greater accessibility and lower costs. The Scheme aims to keep the costs of applications to the court as low as possible. The Minister will prescribe the fees payable while the rules of court on procedural matters must provide for the least expensive procedures consistent with justice.
The Scheme amends the Powers of Attorney Act 1996 to bring the provisions on enduring powers into line with the provisions of the Scheme.
Another key feature of the Bill is the establishment of an independent Office of Public Guardian, whose primary function will be to supervise persons appointed by the courts to perform guardianship or decision-making functions on behalf of incapacitated persons. In situations where there is no person willing or able to act as personal guardian for an incapacitated person, the Office will also act as a guardian of last resort.
The Bill will give effect to two important international Conventions as follows:
ˇ The UN Convention on the Rights of Persons with Disabilities;
ˇ The Hague Convention on the International Protection of Adults.
The Minister paid tribute to the work of the Law Reform Commission on its Consultative Paper and Final Report on Vulnerable Adults and the Law. His proposals are largely based on the Commission’s recommendations. The Minister announced that he intends to jointly host a seminar on his proposals with the National Disability Authority in the coming months. He looks forward to a period of consultation on his proposals in the run up to publication of the Bill in 2009.
The scheme of the Bill is on the Department’s website: www.justice.ie
15 September 2008
Note for Editors
Main Legislative Impacts
ˇ The Bill will repeal and replace the Lunacy Regulation (Ireland) Act 1871.
ˇ The Bill re-enacts the provisions of the Powers of Attorney Act 1996 and updates them in line with best practice.
ˇ The Bill represents an important part of the process towards ratification of the UN Convention on the Rights of Persons with Disabilities, which was signed by Ireland on 30 March 2007.
ˇ The Bill gives effect to the Hague Convention on the International Protection of Adults.
Guiding Principles of the Bill
The Bill contains a number of guiding principles to assist both the Court and persons making a decision on behalf of an adult who lacks capacity. These principles follow both the Law Reform Commission’s recommendations as set out in its 2006 Report on Vulnerable People and the Law and article 12 of the UN Convention on the Rights of Persons with Disabilities.
The statutory guiding principles will require that any act done or decision made on behalf of a person must be in that person’s ‘best interests’. They require that the possibility of regaining capacity be considered; that a person’s participation in any act done or decision made affecting that person be encouraged as fully as possible; and that the person’s past and present wishes, beliefs and values are considered as far as is reasonably ascertainable.
The Presumption of Capacity
The Bill establishes that there is a presumption of capacity; that no intervention in the person’s decision-making will take place unless it is necessary having regard to the individual needs and circumstances of the person. A person shall not be treated as unable to make a decision unless all practicable steps to help them make a decision have been taken without success. The Bill further provides that any act done or decision made under the Bill must be done or made in a way which is the least restrictive of a person’s rights and freedoms.
Supported Decision Making
The Bill provides that a person is entitled to supported or assisted decision making. The person must, so far as is reasonably practicable, be permitted and encouraged to participate, or to improve his or her ability to participate, as fully as possible in any act done for him or her and any decision affecting him or her.
Substitute Decision Making
Where it is not possible to support a person in exercising capacity or making a decision, the Bill provides that the Court or a personal guardian appointed by the Court will act as the substitute decision maker on their behalf. It is anticipated that where substitute decision making is necessary, the Court would make once-off decisions and where a number of on-going decisions are required that a personal guardian will be appointed by the Court for that purpose.
Courts Jurisdiction
The High Court and the Circuit Court will have concurrent jurisdiction to hear applications under the Bill. It is anticipated that a substantial proportion of applications will be heard in the Circuit Court, ensuring greater accessibility and lower legal costs. Decisions on certain matters will be restricted to the High Court, such as a decision concerning non-therapeutic sterilisation, withdrawal of artificial life-sustaining treatment or organ donation.
Personal Guardians
The Bill will create a new legal role of ‘personal guardian’. Where a person has been found to lack capacity a personal guardian can be appointed by the High Court or the Circuit Court to make decisions concerning his or her personal welfare or property and affairs. The High Court or Circuit Court will always have the option of not appointing a personal guardian and making the decision or decisions itself where the matter is urgent and it is expedient for it to do so.
The powers conferred on a personal guardian will be as limited in scope and duration as is reasonably practicable in the circumstances. A personal guardian may have their appointment revoked if they act in a manner which contravenes the authority conferred on him or her or if it is not in the person’s best interests.
Office of the Public Guardian
The Public Guardian will be independent in the performance of his or her functions and shall be appointed by the Government on the nomination of the Minister. He or she will be appointed for a six year term and can be re-appointed for a second or subsequent term.
In order to ensure that the new Office of Public Guardian is to fulfil its supervisory role on behalf of this particularly vulnerable group in society, the Bill creates the roles of ‘general visitor’ and ‘special visitor’ who can be directed by the Office to visit the court-appointed persons or the person lacking capacity. The special visitor (who will be a registered medical practitioner) or the general visitor will also have powers to access records relating to the person who lacks capacity.
United Nations Convention on the Rights of Persons with Disabilities
The Bill will enable the State to meet its obligations under the United Nations Convention on the Rights of Persons with Disabilities, signed by Ireland on the 30th March 2007, insofar as it relates to legal capacity issues. The Government had previously decided in March 2007 that the Convention be ratified by Ireland as quickly as possible, taking into account the need to ensure that all necessary requirements under the Convention are being met. To date, 130 states have signed up to the Convention and 34 have ratified it. The Bill will further ensure that Ireland is complying with its responsibilities under the European Convention on Human Rights.
Hague Convention on the International Protection of Adults
The Bill will give effect to the Hague Convention on the International Protection of Adults. The Convention protects adults who lack capacity in international situations. It provides that the laws and jurisdiction of the state of "habitual residence" will have precedence over the laws and jurisdiction of the state of nationality or former habitual residence. The Convention will ensure the validity of acts in other jurisdictions by a person or court on behalf of a person who lacks capacity. At present the Convention has been ratified by two States: the United Kingdom and Germany. France, the Netherlands and Sweden have signed the Convention. A number of other states are expected to sign or ratify the Convention to coincide with the celebration of the 115th Anniversary of the Hague Conference on Private International Law on 18th September 2008.