Yesterday the Joint Committee on Justice, Defence and Equality published a very significant Report on the Mental Capacity Bill 2008. The Report followed on from written submissions that the Committee called for in August 2011 and two public hearings the Committee held in February. The Committee in its report acknowledged that the new legislation must reflect human rights-based approach to legal capacity.
The main points made in the Report are as follows
- The best interests principle is not appropriate in relation to adults when questions are raised in relation to their decision-making
- Article 12(4) of the UN Convention on the Rights of Persons with Disabilities requires respecting the “will and preferences” of the person be the central principle
- A court is not an appropriate forum for examining issues around legal capacity
- The legal capacity legislation should provide for advance care directives including advance care directives in mental health
- The new legal capacity legislation needs to move away from guardianship and should be based on supported decision-making
- Decisions made by third parties for someone else should only be done as a last resort
This Report is a very significant reference point for the new legal capacity legislation. The Mental Capacity Bill 2008 (heads of the bill) is clearly out of step with international human rights law, in particular Article 12 of the CRPD. It is expected that the government will publish the legislation shortly and it will be important that the above points are factored into the legislation. Another important reference point is the Essential Principles: Irish Legal Capacity Law. The principles were developed by 15 civil society organizations. The principles are based on best international practice and the guiding ethos of the UN Convention on the Rights of Persons with Disabilities. Putting these principles in law would enable the Government to honour its Programme for Government commitment to introduce capacity legislation in line with the UN Convention. It would also result in a real improvement in people’s lives.