Minister Kathleen Lynch Welcomes groundbreaking legislation repealing the archaic Lunatics Act and Lunacy Regulation
Major step forward in the promotion and protection of the rights of persons with capacity difficulties.
Passage of Assisted Decision-Making (Capacity) Bill 2013
On the final day of the Dail before the Christmas break, Minister Kathleen Lynch, Minister of State with responsibility for Mental Health Primary Care and Social Care (Disabilities and Older People), welcomed the passage of pioneering legislation which will enshrine the right of vulnerable people to take their own decisions where possible.
Minister Lynch said: “I am delighted that the Assisted Decision-Making (Capacity) Bill 2013 has now passed the Oireachtas. This fulfils the Government’s commitment to reform the archaic capacity legislation that has been in place since the 19th century. This Bill enshrines the right of those with intellectual disabilities, with dementia, with acquired brain injury and with mental health issues to take their own decisions, where at all possible. It allows people to make an advance healthcare directive, in which they can outline the kind of treatment they may or may not wish to receive when they are no longer able to speak for themselves. Its reforms will reach into families throughout the country.”
The Minister continued: “Those with capacity difficulties will be able to avail of support options directly targeted to their needs. Families and carers will be able to get information on the options available. There will be robust safeguards to protect vulnerable people against exploitation and abuse. A Decision Support Service is being established in the Mental Health Commission to provide information on the Bill. It will also act as regulator and will supervise those taking decisions on behalf of another person.”
The Minister added: “The passage of this Bill is a major step forward towards our goal to ratify the UN Convention on the Rights of Persons with Disabilities.”
The Minister concluded: “The Assisted Decision-Making (Capacity) Bill 2013 is the product of intensive consultation with a wide range of stakeholders. Its rights-based approach, which puts the will and preferences of the person centre stage, will bring about a culture change in the attitudes of individuals and organisations. It is a proud day for me to have sponsored a Bill which represents such a major step forward in the promotion and protection of the rights of persons with capacity difficulties.”
Note for editors: The Assisted Decision-Making (Capacity) Bill 2013 establishes a modern statutory framework to support decision-making by adults who have difficulty in making decisions without help. It will repeal the Marriage of Lunatics Act 1811 and the Lunacy Regulation (Ireland) Act 1871.
The Bill sets out guiding principles that are intended to safeguard the autonomy and dignity of the person with impaired capacity. The guiding principles state that:
- There is a presumption of decision-making capacity unless the contrary is shown.
- No intervention will take place unless it is necessary.
- Any act done or decision made under the Bill must be done or made in a way which is least restrictive of a person’s rights and freedoms.
- any act done or decision made under the Bill in support or on behalf of a person with impaired capacity must give effect to the person’s will and preferences.
The Bill proposes to change the law from the current all or nothing status approach to a flexible functional definition, whereby capacity is assessed only in relation to the matter in question and only at the time in question. If a person is found to lack decision-making capacity in one matter, this will not necessarily mean that s/he also lacks capacity in another matter. The Bill recognises that capacity can fluctuate in certain cases.
Decision-Making Support Options
The Bill proposes three types of decision-making support options to respond to the range of support needs that people may have in relation to decision-making capacity.
Assisted decision-making: a person may appoint a decision-making assistant – typically a family member or carer – through a formal decision-making assistance agreement to support him or her to access information or to understand, make and express decisions.
Co-decision-making: a person can appoint a trusted family member or friend as a co-decision-maker to make decisions jointly with him or her under a co-decision-making agreement.
Decision-making representative: for the small minority of people who are not able to make decisions even with help, the Bill provides for the Circuit Court to appoint a decision-making representative. A decision-making representative will make decisions on behalf of the person but must abide by the guiding principles and must reflect the person’s will and preferences where possible. The functions of decision-making representatives will be as limited in scope and duration as is reasonably practicable.
Enduring Powers of Attorney
The Bill will require attorneys to be subject to supervision by the Director of the Decision Support Service which will also have the role of registering enduring powers of attorney.
Advance Healthcare Directives
The Bill makes provision for advance healthcare directives. The purpose of the advance healthcare directive is to enable a person to be treated according to their will and preferences and to provide healthcare professionals with important information about the person in relation to their treatment choices. A person may, in an advance healthcare directive, appoint a designated healthcare representative to take healthcare decision on his or her behalf when he or she no longer has the capacity to make those decisions. Designated healthcare representatives will be supervised by the Director of the Decision Support Service.
Decision Support Service
The Decision Support Service will be set up within the Mental Health Commission to support decision-making by and for adults with capacity difficulties. The Director of the Decision Support Service will supervise and handle complaints against decision-making assistants, co-decision makers, decision-making representatives, attorneys of enduring powers and designated healthcare representatives. The Director will also prepare codes of practice for specific groups and will promote awareness of the legislation among the general public.