The Assisted Decision-Making (Capacity) Bill 2013: content, commentary, controversy
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Ireland’s Assisted Decision-Making (Capacity) Bill (2013) aims to reform the law relating to persons who require assistance exercising their decision-making capacity. When finalised, the Bill will replace Ireland’s outdated Ward of Court system which has an all-or-nothing approach to capacity; does not adequately define capacity; is poorly responsive to change; makes unwieldy provision for appointing decision-makers; and has insufficient provision for review.
To explore the content and implications of the Assisted Decision-Making (Capacity) Bill.
Review of the content of the Assisted Decision-Making (Capacity) Bill and related literature.
The new Bill includes a presumption of capacity and defines lack of capacity. All interventions must minimise restriction of rights and freedom, and have due regard for “dignity, bodily integrity, privacy and autonomy”. The Bill proposes legal frameworks for “assisted decision-making” (where an individual voluntarily appoints someone to assist with specific decisions relating to personal welfare or property and affairs, by, among other measures, assisting the individual to communicate his or her “will and preferences”); “co-decision-making” (where the Circuit Court declares the individual’s capacity is reduced but he or she can make specific decisions with a co-decision-maker to share authority); “decision-making representatives” (substitute decision-making); “enduring power of attorney”; and “informal decision-making on personal welfare matters” (without apparent oversight).
These measures, if implemented, will shift Ireland’s capacity laws away from an approach based on “best interests” to one based on “will and preferences”, and increase compliance with the United Nations’ Convention on the Rights of Persons with Disabilities.
KeywordsMental disorders Mental capacity Legal capacity Legislation and jurisprudence Social control Formal
I am very grateful to the peer-reviewers for their helpful comments and suggestions.
Conflict of interest
- 1.Leonard P, McLaughlin M (2009) Capacity legislation for Ireland: filling the legislative gaps. Ir J Psychol Med 26:165–168Google Scholar
- 3.United Nations (2006) Convention on the rights of persons with disabilities. United Nations, GenevaGoogle Scholar
- 4.Bartlett P, Lewis O, Thorold O (2007) Mental disability and the European Convention on Human Rights (International studies in human rights, volume 90). Martinus Nijhoff Publishers, Leiden/BostonGoogle Scholar
- 5.Lynch K (2013) Balancing the scales of justice. Irish Examiner 24 September. http://www.irishexaminer.com/analysis/balancing-the-scales-of-justice-244008.html. Accessed 8 March 2014
- 6.Medical Council (2009) Guide to professional conduct and ethics for registered practitioners, 7th edn. Medical Council, DublinGoogle Scholar
- 7.Hughes JC (2013) Best interests. In: Jacob R, Gunn N, Holland A (eds) Mental capacity legislation: principles and practice. RCPsych Publications, London, pp 33–53Google Scholar
- 8.Bartlett P (2005) Blackstone’s guide to the Mental Capacity Act 2005. Oxford University Press, OxfordGoogle Scholar
- 10.Bartlett P (2012) (2010) Informal admissions and deprivation of liberty under the Mental Capacity Act 2005. In: Gostin L, McHale J, Fennell P, Mackay RD, Bartlett P (eds) Principles of mental health law and policy. Oxford University Press, Oxford, pp 385–412Google Scholar
- 11.Shannon J (2013) New capacity Bill has gaps in human rights protection. Irish Med News 34:4Google Scholar
- 12.Hotopf M (2013) The assessment of mental capacity. In: Jacob R, Gunn N, Holland A (eds) Mental capacity legislation: principles and practice. RCPsych Publications, London, pp 15–32Google Scholar
- 13.Jacob R, Fistein E (2013) Clinical ambiguities in the assessment of capacity. In: Jacob R, Gunn N, Holland A (eds) Mental capacity legislation: principles and practice. RCPsych Publications, London, pp 96–108Google Scholar
- 14.Jacob R, Holland A (2013) Introduction. In: Jacob R, Gunn N, Holland A (eds) Mental capacity legislation: principles and practice. RCPsych Publications, London, pp 1–14Google Scholar
- 15.Welsh SF (2013) Provisions of the Mental Capacity Act 2005. In: Jacob R, Gunn N, Holland A (eds) Mental capacity legislation: principles and practice. RCPsych Publications, London, pp 54–77Google Scholar
- 16.Welsh SF, Keeling A (2013) The deprivation of liberty safeguards. In: Jacob R, Gunn N, Holland A (eds) Mental capacity legislation: principles and practice. RCPsych Publications, London, pp 78–95Google Scholar
- 17.Pidd H (2013) Grim tip of a forced marriage iceberg. Guardian 10 August. http://www.theguardian.com/world/2013/aug/09/mentally-disabled-forced-marriages-parents. Accessed 8 March 2014
- 18.Steering Group on the Review of the Mental Health Act 2001 (2012) Interim report of the Steering Group on the Review of the Mental Health Act 2001. Department of Health, DublinGoogle Scholar
- 19.Costello J (2013) Bill on assisted decision-making will support the vulnerable. Irish Times 29 JulyGoogle Scholar
- 20.Kennedy H (2012) ‘Libertarian’ groupthink not helping mentally ill. Irish Times 12 SeptemberGoogle Scholar
- 21.Kelly BD (2013) Progressive Bill on assisted decision-making offers real hope for families and carers. Irish Times 28 October. http://www.irishtimes.com/news/ireland/irish-news/progressive-bill-on-assisted-decision-making-offers-real-hope-for-families-and-carers-1.1573403. Accessed 8 March 2014
- 22.Lewis O (2010) The expressive, educational and proactive roles of human rights. In: McSherry B, Weller P (eds) Rethinking rights-based mental health laws. Hart Publishing, Oxford and Portland, Oregon, pp 97–128Google Scholar