Tuesday, August 30, 2011

Towards Modern Legal Capacity Legislation in Ireland

by Charles O'Mahony

The Centre for Disability Law and Policy recently prepared a submission to the Oireachtas Justice Committee on the Scheme of proposed legislation that will radically overhaul Irish law on legal capacity. The full submission is available here.

The core message of the submission was that the fields of mental health law, non-discrimination, and legal capacity can no longer be considered separately. In this regard the Convention on the Rights of Persons with Disabilities “recognises that considering these issues in separate silos was wrong and that the artificial lines drawn between these separate fields are increasingly blurred” and it is important to consider the impact the proposed legal capacity legislation on general non-discrimination provisions and mental health law in particular. The submission highlighted that Article 12 of the CRPD on legal capacity is at the core of the Convention and that equal recognition as a person before the law is key to the enjoyment of all other rights. The submission also flagged that the assumption of legal capacity, and the obligation on states to provide supports to people with disabilities in order to enable them to exercise their legal capacity flows from this recognition, and these are the key attributes, which need to be embedded in Irish law, in order to ensure compliance with the Convention.

Other main points in the submission include:

  • The CRPD through Article 12 clearly rejects the “status” and “outcome-based” approaches to legal capacity and insists that the “functional approach” must focus on supports to enable persons to exercise legal capacity.
  • While the Scheme of the Bill has positive aspects it needs to be reconfigured to embody the philosophical shift of Article 12.
  • The Scheme of the Bill regularises substitute decision-making in the form of guardianship instead of prioritising the supports that could prevent substituted decision-making from being used.
  • These are significant shortcomings that need to be addressed, if the proposed legislation is to enable Ireland to ratify the Convention.

The rest of the submission focused on Article 12 of the CRPD and its requirement that State Parties provide a continuum of support to enable people to exercise their legal capacity. In this regard the CDLP suggested that the functional approach to assessing capacity set out in the Scheme of the Bill could have an important role to play in ensuring that individuals who require support to exercise their legal capacity receive the appropriate assistance. The submission conceded that in circumstances of last resort, where the person in question does not have any support network to assist with decision-making, the option of facilitated or co-decision-making should be considered rather than the imposition of substituted decision-making or guardianship. Facilitated or co-decision-making involves an appointed person taking a decision based on a detailed understanding of the person’s life plan, wishes and intentions, and one which has the potential to enhance the capabilities of the person in question, rather than one which is taken in their “best interests”.

A number of examples of best practice in this area have been included in Appendix 1 (range of supports), Appendix 2 (British Columbia) and Appendix 3 (Sweden) of the submission. The examples of best practice provided demonstrated that supports in the area of decision-making do not have to be resource intensive, as was demonstrated by the system of Representation Agreements in British Columbia.

The submission stressed the wider European context of disability law reform. In particular, it noted that the Council of Europe and the European Union are working towards developing a deeper understanding of Article 12 and the implications it might have for regional human rights instruments in Europe. It was also noted that the European Court of Human Rights was clearly edging closer to the core of legal capacity and has already explicitly invoked the CRPD as an interpretive aid to the European Convention on Human Rights. In that regard it was noted that this means that Ireland’s antiquated legal capacity laws are already vulnerable to scrutiny in Strasbourg by the ECtHR. Importantly it was also noted that the functional model in the Scheme of the Bill if retained without modification could result in Ireland being found in breach of the ECHR in time.

The submission noted that the Scheme of the Bill does make reference to the wishes of a person that may have been expressed previously and indeed presently. However, there is no provision to have these wishes enforced legally in future circumstances where they are deemed to lack capacity. The submission contended that the “best interests” principle, which emerged from law and policy focused on children is increasingly inappropriate in relation to adults. The submission also stressed that a central aspect of Article 12 is the focus on the “will and preferences” of the person as the determining factor in decisions about their life and this requires moving away from a “best interests” approach, which brings with it the significant risk of paternalism. As such significant change in thinking required needs to be embedded in the Bill.

In relation to courts or tribunals the submission noted that the CRPD envisages a reduced role for the courts in the area of legal capacity and the law reform trend in light of the CRPD is away from guardianship and substitute decision-making. As such the Scheme of the Bill adopts a functional approach to legal capacity, referring to informal decision making and retaining a role for the courts. It was suggested that the Bill should reflect that the primary role of the court under the Scheme of the Bill should not be to deprive persons of their capacity. Rather it should be to safeguard persons against deprivation of legal capacity (ensuring that appropriate supports are provided for decision-making), protect against the abuse of persons considered to have impaired decision-making by third parties and ensure that safeguards that apply to supports are in place.

There was a discussion of the synergy between Article 12 (equal recognition before the law) and Article 19 (living independently and being included in the community) of the CRPD. In order to live independently in the community a person needs to be recognised as having legal capacity. Conversely development of capacity requires experience of living independently and being included in the community and forming relationships. The dynamic life experiences through which all other citizens develop their capacity and skills are denied to disabled people on the basis that a third party considers that they lack capacity. The Bill needs to provide for the removal of barriers that prevent persons with disabilities from living independently and acquiring the capacity to make decisions in all areas of their life.

There was a discussion of the far reach of Article 12 beyond the scope of the Bill. It was noted that there are deficiencies with legal capacity law in the context of the mental health law as it relates to adults and minors and in the criminal law in respect of capacity to consent to sexual relations. It was argued that the shortcomings could be addressed in order for the State to comply with its obligations set out in the CRPD and finally ratify the CRPD. The Centre for Disability Law & Policy also submitted that these issues do not necessarily need to be considered as part of this Bill. Instead it was suggested that these issues could be considered by the legislature separately as it moves towards ratification of the Convention on the Rights of Persons with Disabilities. The CDLP also recommended that given the evolving understanding of Article 12 and legal capacity a review mechanism should be built into the Bill.