The Minister for Justice, Equality and Defence, Alan Shatter TD, and the Minister of State with responsibility for Disability, Older People, Equality & Mental Health, Kathleen Lynch TD, today announce the publication of the Assisted Decision-Making (Capacity) Bill 2013. The Bill was approved by the Government at its meeting on 16 July 2013.
Making the announcement, Minister Shatter said "I am pleased to announce a comprehensive reform of the long-outdated law on mental capacity, which will greatly assist vulnerable people with limited decision making capacity to better manage their personal, property and financial affairs.
"For the first time, Irish law will provide for supported decision-making. This Bill replaces the Wards of Court system with a new legal framework that gives greater autonomy to those who need assistance in making fundamental decisions concerning their lives.
"The new legislation provides for a range of supports that are tailored to the person’s individual needs and circumstances. It pioneers an approach which protects vulnerable individuals and ensures that their wishes are taken into account, to the greatest extent possible, on decisions concerning their lives. At the same time, it also protects family members and friends who take on the difficult task of supporting the individual.
Minister Shatter continued "This reform of the law is long overdue and is a major step towards ratification by Ireland of the UN Convention on the Rights of Persons with Disabilities. The Bill will effect a fundamental reform of our law by prescribing an entirely new supportive architecture reflecting the State’s international obligations and by implementing the commitment to reform contained in the Programme for Government".
Minister Lynch added "This Bill will provide a continuum of supports to those who need assistance in making decisions that affect their lives. The Bill sets out a menu of options to respond to people's differing needs. Some people may need a small amount of help in obtaining information and in getting to grips with systems. The decision-making assistant option will suit them. The co-decision-making option may be most suitable for someone who needs somebody to make a decision jointly with them. That person will be able to enter voluntarily into a co-decision-making agreement with a trusted friend or relative. Many people will be able to use informal arrangements rather than formal agreements and the Bill will provide protection in such cases. In a minority of cases, there is provision for court-ordered decision-making representation. This will be an option of last resort but the reality is that our law must still provide for it. In such cases, the representative will be required to faithfully act as the individual's voice. In all cases, the person's will and preferences will have to be centre stage."
The Bill will:
- 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 addition, the Bill will, at Committee Stage, incorporate provisions relating to Advance Care Directives, which will be provided by the Department of Health. These were drafted on foot of a Government Decision on 12 March 2013 with the intention of including them in the Assisted Decision-Making (Capacity) Bill at Committee Stage.
Underpinning these provisions, the Bill sets out the following guiding principles, which will apply to each and every intervention under the proposed legislation:
- there is a presumption of decision-making capacity.
- no intervention will take place unless it is necessary having regard to the needs and individual circumstances of the person.
- a person will be treated as unable to make a decision only where all practicable steps to help that person make a decision have been taken without success.
- 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.
- any act done or decision made under the Bill in support or on behalf of a person with impaired capacity must give effect to his or her will and preferences.
Minister Shatter concluded "This is an important legal reform initiative. The current system, largely based on the 1871 Lunacy Regulation (Ireland) Act, is highly unsuitable for the 21st century. Our new system offers a modern, calibrated legal approach. We will replace, for instance, the all-or-nothing approach embodied by the current court wardship system. We are also updating the law on enduring powers of attorney, enabling powers of attorney to address healthcare matters. The system will be administered by the new Office of the Public Guardian within the Courts Service which will draw on the extensive existing expertise of courts officials.
"Minister of State Lynch and I would like to take this opportunity to thank the Joint Oireachtas Committee on Justice, Defence and Equality for its sterling work in soliciting submissions and arranging hearings on this matter, and for its success in drawing together in one report a myriad of invaluable comments on the Scheme of the Bill."
17 July 2013
Note for Editors:
Background and purpose of the Bill
The purpose of the Assisted Decision-Making (Capacity) Bill is to comprehensively update and reform the law governing decision-making by people whose capacity may be impaired. The Bill's aim is to enable individuals to have greater autonomy, where possible, in decision-making.
The Bill provides a range of new options for people who need support on decision-making and replaces the existing Wards of Court system. An individual will have the option of appointing a decision-making assistant to support the person by, for instance, sourcing information, so that the person can make a decision more easily. The person can also enter into a court-approved co-decision-making agreement appointing a trusted family member or friend as a co-decision-maker to make decisions jointly with the person. For those unable to exercise capacity, the Circuit Court will be able to appoint a decision-making representative charged with making decisions on the person's personal welfare and/or property and affairs. The decision-making representative will have the responsibility to act according to the person's wishes, where practicable.
The Bill also provides for protection from liability for informal decision-makers in relation to personal welfare and healthcare decisions made on behalf of a person with impaired capacity where such decisions are necessary and no formal decision-making arrangements are in place. It modernises the law relating to enduring powers of attorney and extends them to cover healthcare.
The Bill provides for the appointment of the Public Guardian. The Office of the Public Guardian will be an independent office located within the Courts Service. The Public Guardian will supervise court appointed decision-making assistants, co-decision-makers and decision-making representatives and persons holding enduring powers of attorney. The Public Guardian will also promote awareness among the general public and relevant public and private sector bodies of issues relating to capacity.
Reform of the law on decision-making capacity is required to enable the State to ratify the United Nations Convention on the Rights of Persons with Disabilities. The Bill also gives effect in the State to the Hague Convention on the International Protection of Adults.
The Bill repeals the 1811 Marriage of Lunatics Act and, following a transition period when all the capacity of existing wards of court will be reviewed, the 1871 Lunacy Regulation (Ireland) Act, which currently governs the law in relation to wards, will cease to have effect.