June 2015 Civil society organisations comment as Assisted Decision-Making Bill passes Committee Stage

The Assisted Decision-Making (Capacity) Bill entered committee stage yesterday and came one step closer to becoming law. Over four hundred proposed amendments were motioned and debated by the Select Committee on Justice, Defence and Equality. A number of civil society organisations in Ireland felt that the Select Committee could have gone further to more fully secure the rights of older citizens and those with disabilities.

Professor Gerard Quinn, Director at the Centre for Disability Law and Policy (CDLP) at NUI Galway, stated that: “Our Centre has joined with a coalition of over 15 organisations representing people with disabilities and their families, older persons, mental health service users, and health professionals, to contribute to the development of the Bill. The coalition is pleased with the strong public consultation of the Department of Justice and Equality in the development of the Bill. But we remain concerned that the Department may have missed an opportunity to fully harmonise the Bill with current human rights standards.”

Sarah Lennon from Inclusion Ireland stated that: “We are pleased overall with the commitment of the Department of Justice and the Justice committee to making this law responsive to the needs of Irish citizens. The sheer number of amendments reflected the extensive consultation with civil society organisations representing experts through experience in the development of the Bill. We want to continue working with the Department to create robust mechanisms truly harmonise the Bill with international human rights standards.”

Dr Eilionóir Flynn, the Deputy Director of the CDLP stated that: ‘The repeal of the “wards of court” system has been a long time coming. The Ministry for Justice has rightly consigned the 1871 Lunacy Regulation Act to the dustbin of history. But there is a risk that residues of the old-style paternalism have remained. In particular, the Bill places too much emphasis on a person’s mental capacity. We don’t want a situation where people with disabilities and older persons are forced to get a mental capacity assessment to enter into support agreements under the Bill. Under the Bill a person will be ineligible to appoint an assistant for a decision if the person is seen to lack mental capacity. Yet the whole point of the Bill was to provide support arrangements precisely for people who would otherwise fail outdated and discriminatory mental capacity assessments. This shift is required under international human rights law. The UN Committee on the rights of Persons with Disabilities has been clear: mental capacity assessments must go.”

Jim Walsh, of the Irish Advocacy Network, expressed concern that: “Assessing capacity will become the focus rather than understanding and facilitating individual support needs. Statutory bodies concerned with training care staff, we fear, will focus on how to question someone’s capacity rather than helping staff to address social support needs and support a person’s decision making.”

Some mental health advocates are also concerned that the new advanced healthcare directives will be useful for physical health problems but will apply unequally to mental health service users. Fiona Walsh of Tallaght Trialogue commented that: “Physical health and mental health issues must be given equal respect. Under the current Bill, not even a government minister could make an Advance Healthcare Directive which would be respected in the event of a mental health crises that leads to involuntary treatment under mental health law.”

Another area of concern related to informal decision-making powers. The term 'informal decision-maker' was removed in yesterday’s committee stage. However, advocates remain concerned that some of the troubling aspects of the provisions remain in place.

Tina Leonard, Head of Advocacy and Public Affairs at The Alzheimer Society of Ireland, said: “The Minister for Justice rightly removed some of the excessive power inadvertently granted to informal supporters of people who believed that the person they were supporting lacked mental capacity. That provision would have allowed, for example, an older person to be placed in a home against their wishes simply because their adult child 'believed that the person lacked mental capacity'. Instead, we need to secure people’s dignity to take risks. But although the language has changed after the Minister’s recent amendments, we are concerned that some of these 'informal powers' remain in place. It is not enough to simply remove the term 'informal decision–maker' if the excessive powers remain the same.”

Professor Quinn concluded: “All of us are shaped by the balance of protection and autonomy in law. The legal requirement to wear seatbelts is an example showing where autonomy ends and public protection begins. But the current Bill seems to say that for people with disabilities and older people, different rules apply in striking that balance. We need to move beyond 'special laws' for people with disabilities, just as we’re moving away from 'special schools' and 'special day programs'. True integration requires a commitment to equality.”

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