The over-riding principle in relation to all three categories of persons covered by the Bill is that a person is presumed to have decision making capacity unless the contrary is proved otherwise, write Tom Carney and Sinéad O’Loghlin.
The Assisted Decision – Making (Capacity) Bill 2013 (the “2013 Bill”) seeks to establish a new legal framework to assist people who have difficulties in exercising their decision making ability.
The Minister for Justice in outlining the objectives and aims of the 2013 Bill has stated that the driving force for introducing the legislation has been to ensure that Ireland meets its international legal obligations under the UN Convention on the Rights of Persons with Disabilities (the “Convention”).
Article 12 of the Convention views equal recognition before the law as a fundamental right for people with disabilities and recognises that people with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. Furthermore, the Convention seeks to provide appropriate safeguards against abuse of persons with disabilities.
A person cannot be deemed to lack decision-making capacity simply because there is a risk that he or she might make an unwise decision.
The introduction of the 2013 Bill sees the establishment of a model of supported decision making to ensure that all persons with disabilities exercise their decision making capacity whilst ensuring a person’s autonomy to the greatest extent possible.
1. Legal Model under the 2013 Bill
The 2013 Bill aims to cover three specific categories of persons, namely:
- persons with disabilities, particularly intellectual disabilities;
- older people with degenerative cognitive conditions; and
- persons with mental health issues who may have fluctuating capacity.
The over-riding principle in relation to all three of these categories is that a person is presumed to have decision making capacity unless the contrary is proved otherwise.
The 2013 Bill also encompasses other key fundamental principles which apply to the three outlined categories of persons above.
The 2013 Bill requires that all practical steps have to be taken to support a person in terms of decision-making capacity before it can be decided that he or she lacks capacity and that a person cannot be deemed to lack decision-making capacity simply because there is a risk that he or she might make an unwise decision.
Another fundamental principle of the 2013 Bill is that in situations where interventions become necessary, they must be done in a way that is least restrictive of a person’s rights and freedom of action. Any intervention must respect the person’s right to dignity, bodily integrity, privacy and autonomy.
In this vein, the 2013 Bill provides a number of decision-making support options to support people who have difficulties in exercising their decision-making ability.
The assisted decision-making option is aimed at the person whose decision-making capacity is somewhat impaired but whom, with the necessary information and explanation, could potentially exercise decision-making capacity. This mechanism permits the person to appoint a decision-making assistant under a decision-making assistance agreement which would delineate and govern the obligations and duties of the decision-making assistant. The Office of the Public Guardian will have supervisory authority over decision-making assistants and the person can remove the decision-making assistant at any time if dissatisfied with how the decision-making assistance is carrying out his/her duties.
The co-decision-making option gives a person the facility to appoint a trusted family member or friend as a co-decision-maker under a co-decision-making agreement which will then be confirmed by the Circuit Court. Essentially, the co-decision-maker will be bound by the terms of the agreement and subject at all times to review by the Circuit Court. The Office of the Public Guardian will hold the supervisory role in relation to the co-decision-making mechanism to ensure that the co-decision-maker is at all times performing his/her duties.
Owners and staff of residential institutions will not be permitted to act as co-decision-makers.
It is important to note that the co-decision-maker option is restricted to family members and friends. In order to avoid potential conflicts of interest, owners and staff of residential institutions will not be permitted to act as co-decision-makers.
Decision Making Representative
In the event that a person is not able to take decisions with the assistance of a decision-making assistant or with a co-decision-maker, the 2013 Bill sets out a legal framework for the appointment, by the Circuit Court, of a decision-making representative. This appointment is subject to certain safeguards. The decision-making representative will be accountable to the Circuit Court and subject to the supervision of the Office of the Public Guardian.
In order for a decision making representative to be appointed, the Circuit Court must be satisfied that the person would lack capacity even if supports such as the assisted decision-making mechanism or the co-decision-making option were offered. The court would also have to decide the precise scope of the decision-making representative’s role. A family member or friend can be appointed to act, however, if there is no suitable person available, the Circuit Court will request the Office of the Public Guardian to nominate two or more people from a panel that will be established by that office. The 2013 Bill places a legal obligation on the Circuit Court to annually review the capacity assessment of the person where there is a possibility that the person may recover capacity. In cases where there is no prospect of the person recovering capacity, a capacity review is required every three years.
2. Reform of the Wardship Regime
The 2013 Bill significantly reforms our existing laws on capacity. One of the most significant reforms under the 2013 Bill is the phasing out of the ward of court mechanism which is currently in place.
The current wardship regime requires the High Court to make a declaration that the person lacks capacity. The provisions of the 2013 Bill will apply to existing wards of court and each ward of court will be reviewed on a case by case basis to determine whether or not they can be transferred to the new arrangements introduced by the 2013 Bill or discharged from wardship.
3. Future Planning
The 2013 Bill introduces the possibility of advance planning through Enduring Powers of Attorney.
Enduring Powers of Attorney ensure that a person’s wishes are captured in an effective manner and by way of legally binding agreement. Enduring Powers of Attorney permit a person to appoint a trusted person to manage his/her affairs if he/she loses capacity at some point in the future. Appointed Attorneys will, at all times, be subject and accountable to the court and subject to the supervisory authority of the Office of the Public Guardian vis-à-vis the performance of his/her duties.
The 2013 Bill envisages that the provisions of the Power of Attorney can also be extended to healthcare decisions to permit a person to have greater legal certainty that his/her’s wishes in terms of healthcare decisions be communicated to all appropriate and relevant parties.
Tom Carney is a partner in Dillon Eustace.
Sinéad O’Loghlin is a Senior Associate in Dillon Eustace.