Call for changes to bill on mentally impaired adults

ONE of the country’s foremost experts on mental health has called on the Government to make changes to new legislation designed to improve protection of adults with impaired decision-making capacity.

Professor Harry Kennedy, who is chair of the Human Rights, Ethics and Law Committee of the College of Psychiatry in Ireland (CPI), expressed concern that the Mental Capacity and Guardianship Bill 2008 was more concerned with the legal process rather than the patient’s clinical needs.

“If you leave things exclusively to lawyers then they very rightly and very properly put liberty first. But there are other considerations. A doctor may put dignity first,” he said.

Prof Kennedy, director of the Central Mental Hospital in Dundrum, said the new legislation needed to create a legal process for relevant others to be empowered to give consent for urgent medical interventions in an emergency. The next-of-kin has no legal basis today. It also needed to define circumstances under which a doctor treating a person who meets the criteria for incapacity may proceed with urgent treatment.

A similar process could be defined for urgent welfare interventions by social workers for vulnerable adults so that a place of safety could be provided where the necessity was urgent, Prof Kennedy said.

Prof Kennedy chaired an group in the CPI which has made recommendations on the proposed legislation in a submission to the Department of Justice. They include that:

* The bill be fully worked out in operational detail, so that it can be operated without constant resort to the High Court for legal guidance or adjudication.

* The definition of incapacity should include a “diagnostic” step to avoid the inappropriate use or abuse of the powers available under the bill.

* The powers and domains of personal guardian/donee of Enduring Power Of Attorney should be distinguished from the roles and powers of medical practitioners.

* Guardians or donees of Enduring Powers Of Attorney should be empowered to instruct legal representatives on behalf of those unable to give legal instructions.

* All costs of legal challenges should be met out of a legal aid or Attorney General’s fund and not out of HSE funds.

* Decisions on capacity to be reviewed regularly.

Prof Kennedy said the CPI was concerned that the focus of the bill is on people with long-term incapacity, “which in practice is less common and less urgent an issue than short-term incapacity”.

People with long-term incapacity can nominate someone to make decisions on their behalf or a personal guardian can be appointed by the courts for the purpose of substituted decision-making. Those with short-term incapacity may not have this benefit and if the bill fails to make the distinction, than difficulties could arise when urgent medical decisions needed to be made, Prof Kennedy said.