September 2013 New Capacity Bill must Respect Human Rights Say Civil Society Organisations

New legislation relating to decision-making ability is a welcome improvement on the current 140-year-old law governing capacity, but needs some improvements if it is to adequately protect people’s human rights, a working group of civil society organisations said today (Tuesday, 24 September).

The Assisted Decision-Making (Capacity) Bill 2013 published in July, is being debated at a public consultation held by the Department of Justice and Equality tomorrow, Thursday, 25 September.

Professor Gerard Quinn, Director of the Centre for Disability Law and Policy Centre, NUI Galway, said: “The Bill innovates by introducing ‘assisted decision-making agreements’ which allow people to choose others they trust to help them with making decisions. This is truly ground-breaking and the Government deserves credit for listening to the community and learning from emerging international trends. 

“More clarifications will be needed to ensure that these agreements are open to anyone to make, legally binding, and must be respected by others so the Bill can transform lives and reach those who really need it”, continued Professor Quinn

Fiona Crowley, Research and Legal Manager, Amnesty International Ireland, said: “This Bill contains some important amendments to the law on capacity which could really benefit people with mental health problems. However, it needs to be amended to clarify how this Bill will interact with the Mental Health Act 2001, so that there are no gaps in the human rights protection of people with mental health problems.”

Paddy Connolly, CEO Inclusion Ireland said: “The Bill represents an important shift away from ‘best interests’ decision-making towards respect for the will and preferences of persons with disabilities, which is a great improvement. However the legislation must prioritise the provision of supports to help an individual make their own decisions, rather than using assessments of mental capacity as a basis for substitute decision-making, which removes decision-making power from the person with a disability.”

Áine Hynes, Irish Mental Health Lawyers Association, said: “We have significant concerns about the scope of powers given to informal decision-makers under the Bill. While it is important to recognise the realities of decisions made on a daily basis by informal carers, the human rights of individuals must also be respected.”

Eamon Timmins, Head of Advocacy, Age Action, said: “The law needs to be changed to restrict this kind of informal decision-making, provide safeguards where it does occur, and require that people are given the option of using assisted decision-making agreements instead.”

Brian O’Donnell, CEO National Federation of Voluntary Bodies, said: “It is also crucial that the government provides a timeline for the reform of other areas of law affected by legal capacity but exempted from this Bill, for example, the Criminal Law (Sexual Offences) Act 1993 and the Juries Act 1976, among others.”

A brief document outlining the group’s proposed reforms can be viewed at: http://nuigalway.ie/cdlp/documents/amendments_to_bill.pdf

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