July 2013 Cautious Welcome for the Assisted Decision-Making Bill

NUI Galway’s Centre for Disability Law and Policy welcomes the publication of the Assisted Decision-Making (Capacity) Bill 2013 today.

Professor Gerard Quinn, Director of the Centre for Disability Law and Policy at NUI Galway, said: “This is a landmark moment in the process of disability law reform in Ireland. Once enacted Ireland should be able to ratify the UN disability treaty. The Minister is to be congratulated for moving beyond traditional guardianship to enable people take charge of their own lives. In particular, as the changed title of the Bill suggests, it innovates by putting into place supports where needed to assist people make their own decisions and chart their own life choices. In the period ahead we will be making many suggested improvements to make this profound shift a reality in people’s daily lives. The Bill retains a limited form of guardianship. Obviously the Minister and her officials believe this to be compatible with the UN disability treaty.  Time will tell.  But for the moment we laud the major step forward in the provisions dealing with supported decision making and will do our part to come forward with constructive suggestions for refinements and improvements.”

He added: “The process for getting to this point deserves particular praise. The Oireachtas Justice Committee held a series of important and indeed historic hearings with civil society and made sure their voice was heard.  Officials from Government Departments responsible for drafting the legislation also listened. And the Minister was a very active listener. This demonstrates the success of concerted efforts from a large range of civil society organisations across disability, mental health, and ageing sectors, who put forward positive ideas for reform in the Essential Principles for Legal Capacity Law.”

Dr Eilionóir Flynn, Senior Research Fellow with the Centre for Disability Law and Policy, said: “Among the areas for improvement in the Bill are the following:

• First, we welcome the inclusion in the Bill’s General Principles of the requirement that decision-makers must give effect, wherever possible to the ‘will and preferences’ of the person, as it ensures respect for the basic human rights of persons with disabilities.  We will be making suggestions to ensure the primacy of this principle throughout the Act to ensure respect for human rights.

• Secondly, it is crucial that the Government provides a timeline for the reform of other areas of law affected by legal capacity but currently exempted under this Bill, for example, the Mental Health Act 2001, the Criminal Law (Sexual Offences) Act 1993, and the Juries Act 1976, among others.

• Thirdly, there is a need for some sort of infrastructure to encourage and develop good practice in supported decision-making. In the Bill this role is given to the Office of Public Guardian. The title of the office suggests that a more protective, rather than empowering approach will be take. An Office for Assisted Decision-Making may be more appropriate.

• Fourthly, some process for active learning must be put in place. The Bill contains a provision for a review of the functioning of the Act within a five-year timeframe. We believe that a more robust review provision is required, given the rate at which new thinking on legal capacity and supported decision-making is advancing. A review of the ‘functioning’ of the Act could be limited in scope, especially if relatively few provisions of the Act have been commenced within that five-year timeframe. This needs improvement.”

Charles O’Mahony, Lecturer in Public Law at NUI Galway, said: “Much of the capacity Bill is framed positively and a greater premium is being placed on the respect for the decision-making of persons. The Mental Health Act 2001 is currently undergoing review and it is essential the mental health legislation and new legal capacity legislation interface in a consistent way reflecting Ireland obligations under international human rights law.”

Professor Quinn concluded: “This will replace Victorian legislation which the early Irish Free State pledged to remove. We are finally catching up with the ideals of our founders. With improvements this Bill could finally hand back power to the people and position us again in the first rank of nations dedicated to the rights of persons with disabilities.”

-ENDS-