Balancing the scales of justice
The bill, on which I and my colleague, Justice Minister Alan Shatter, have led together, is a groundbreaking piece of legislation which proposes a comprehensive reform of the law on capacity in line with the Government’s commitment in our Programme for Government.
This bill, when enacted, will be a key stepping stone towards ratification by Ireland of the UN Convention on the Rights of Persons with Disabilities (CRPD).
The Government has consulted a wide range of interest groups at each stage of the process of drafting this complex legislation. What we want to achieve is a statutory framework that supports people’s basic rights to make their own decisions.
Our present law in this area has been the subject of regular and serious criticism. At present there is in effect an “all or nothing” approach to capacity. Where a person has a serious impairment of their decision-making capacity (eg, through acquired brain injury) the only option is to make the person a ward of court. Rendering a person a ward of court follows a declaration by a court that they lack capacity, and in effect supplants their power to make their own decisions, leaving decisions to be made for them having regard to their “best interests”.
This framework has been criticised as not catering at all adequately for the rights of people who are in this situation and as providing only one, very severe, intervention.
The bill, when enacted, will render the wardship system a thing of the past and proposes a much less intrusive system.
This is at one level about providing practical and tailored help for people with impaired decision making, but at another level it is about recognition by the law of the decisions that a person takes. This is an area of strong current focus internationally, and most particularly since the UN adopted the CRPD in 2006. As the Fundamental Rights Agency put it very succinctly in a Feb 2013 report entitled Legal Capacity of Persons with Intellectual Disabilities and Persons with Mental Health Problems, “Article 12 of the CPRD recognises that persons with disabilities are ‘persons before the law’ and have legal capacity on an equal basis with others. The convention facilitates a shift away from ‘substituted decision-making’ towards more individually-tailored systems of support.”
The philosophy behind the bill is that everyone should be able to make his or her own decisions where at all possible. Every action taken under the bill must comply with a set of guiding principles. These will safeguard the person’s autonomy to the greatestextent possible. They put the person’s own wishes or “will and preferences” centre stage. They require interventions to be least restrictive of a person’s rights and freedom of action. Interventions should be taken only when absolutely necessary. All actions must respect the person’s right to dignity, bodily integrity, privacy, and autonomy.
People have very differing needs in terms of their decision-making capacity. The bill proposes a range of supports tailored to the person’s individual circumstances. Sometimes all the person needs is for someone else to obtain information and to explain it clearly. Often the person needs something as simple as having a detailed form completed on his or her behalf. The new, assisted decision-making option will be ideal for these people. It will give them full control over their decisions. At the same time, they will be able to appoint someone that they trust as their assisted decision-maker. They can ask the decision-making assistant to get information for them and to explain it to them.
The co-decision-making option has been designed for people who need more intensive help with decision-making. They will be able to appoint a trusted family member or friend to take decisions jointly with them. The person’s wishes will be paramount. The co-decision-maker will not be able to impose his or her preferences arbitrarily. The bill stipulates that the co-decision-maker cannot oppose the person’s decision if it is reasonable and is not going to do anyone any harm. In other words, people will not be prevented from making what might be considered bad decisions if that is their will and preference.
There will, of course, be a small group of people who, unfortunately — by reason of very serious impairment — do not have the capacity to make their own decisions, even with these supports. The bill provides, as a last resort, for the circuit court to appoint a decision-making representative to take decisions on the person’s behalf. The representative will be answerable to the court and subject to strict controls. Where the person’s wishes are known or can be determined to any extent, the representative will be obliged to take these into account.
The best thing is for a person to plan in advance and to be able to appoint someone that he or she trusts to handle his or her affairs. The enduring power of attorney option currently allows the person to appoint another person as an attorney for this purpose. The new bill will extend enduring powers of attorney to cover healthcare matters. The bill will also require attorneys to be subject to supervision. This new provision will give greater protection to the person against possible exploitation.
I am conscious that carers and healthcare workers are often forced to make decisions on a person’s behalf in situations of crisis. The bill provides protection from liability for those who have to make informal decisions on a person’s welfare, if done in good faith. However, this protection does not extend to decisions relating to a person’s property or financial affairs.
We plan to establish an Office of the Public Guardian (OPG) within the Courts Service once the bill is enacted. This will have the role of advising members of the public on the most suitable support options, either for themselves or for family members or friends. The OPG will set up an information help-line to answer queries on the legislation. It will also have a website with key information. The OPG will produce guidance for families, carers, doctors, health care workers, lawyers, social workers, financial institutions on the legislation. It will also draw up codes of practice, particularly for the healthcare sector, on capacity issues.
I foresee that the bill has the potential to bring about a culture change in terms of how we make decisions. The legislation will enable a greater number of us than ever before to retain independence in terms of decision-making capacity.
I am the proud sponsor of this legislation and the enhancements that it will bring to the rights of the most vulnerable.
*Kathleen Lynch is a Labour TD for Cork North Central and is minister of state for disability, equality, and mental health
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