Legal Capacity Reform in the Republic of

IrelandDr. Eilionóir Flynn,

Centre for Disability Law and Policy

National University of Ireland Galway

Current Irish Law - Wardship

• Regulation of Lunacy Act (Ireland) 1871 – Ward of Court. Person of ‘unsound mind’ incapable of governing his person or property. Evidence from 2 medical experts required.

• Committee of the ward = guardian. Or, High Court can act as guardian and make decision.

• Status based, plenary guardianship. Person has no decision-making power in any area of their life (although enforcement of this is weak).

Current Irish Mental Health Law

• 2001 Act – voluntary and involuntary patients – detained in ‘approved centres’

• Detention if person has ‘mental disorder’ (includes risk of harm to self/ors), certified by medic and confirmed by second opinion within 24 hours of detention

• Mental Health Tribunals required to review detention to decide if still necessary. Independent legal representation.

Irish Reform Process

• 2006 Law Reform Commission Report (Vulnerable Adults) (CP – 2003)

• 2007 Ireland signs CRPD

• 2008 Scheme of Mental Capacity Bill

• Regulatory Impact Assessment says Bill needed in order for Ireland to ratify

• Private Members Bills (2007, 2008)

• Program for govt commitment to bring forward capacity legislation to enable Ireland to ratify CRPD

• August 2011 – Parliamentary Justice Committee call for submissions on capacity legislation

Building the Coalition• September 2011 Amnesty Ireland & CDLP convene first

roundtable discussion

• Members: mental health (Mad Pride, IAN), intellectual disability (Inclusion, NFVB), older people (Alzheimer, Age Action), brain injury (BRI), mainstream human rights (Amnesty, IHRC, LRC, PILA/FLAC)

• Input from Christine Gordon in British Columbia on coalition-building the RA Act

Key Decisions

• Develop principles for Irish Legal Capacity Law which all coalition organisations could accept

• Influence political process to ensure that the idea of replacing guardianship with supported decision-making became the political agenda

• Build support for the idea of a legal capacity system (not a mental capacity system) among practitioners and service providers

Principles: Key Points

No assessment of mental capacity which leads to a denial of legal capacity or substitute decision-making

Right to support to exercise legal capacity must be core of new legislation – and a range of supports are needed

Supports provided should survive the Mental Health Act

Facilitated decision-making is only permissible as a last resort, where the will and preferences of the individual are unknown. Facilitator must imagine the will and preference of the person, and not act in ‘best interests’

Outcomes

Conferences: Nov 2011 and April 2012

Justice Committee Hearings March 2012, Report in May

Essential Principles for Irish Legal Capacity Reform, published April 2012

Linking capacity reform to review of the Mental Health Act

Workshop for Practitioners May 2012

Lessons

Important to build a broad coalition

Legal capacity reform touches upon so many areas of law – but need to keep focus

Gather examples of home-grown best practice in supporting individuals to make decisions

Build on, but adapt, international experience to suit the political and cultural context

More information

http://www.nuigalway.ie/cdlp/documents/principles_web.pdf

http://www.nuigalway.ie/cdlp/events/amnesty_april_3rd.html

http://www.amnesty.ie/news/new-capacity-law-must-make-supported-decision-making-reality-0

http://www.oireachtas.ie/parliament/mediazone/pressreleases/name-7795-en.html

eilionoir.flynn@nuigalway.ie