THE CURRENT wards of court system for people with restricted legal capacity should be replaced with a system based on assisted decision-making, according to the Oireachtas Committee on Justice, Defence and Equality.
The committee launched its 740-page report on the Scheme of the Mental Capacity Bill yesterday, containing more than 70 submissions from interested parties along with reports on oral hearings by the committee.
The scheme of the Bill is intended to address the situation of people whose ability to make legal decisions is limited by mental illness or intellectual disability. In some instances they are made wards of court, and the High Court makes decisions ranging from permitting medical procedures to allowing them to go on holiday.
The chairman of the committee, David Stanton, said the present legal framework for people in this situation was governed by the Lunacy Act of 1871, which was inadequate and insufficient to meet our international commitments under the UN Convention on the Rights of Persons with Disabilities.
“During the committee hearings, I was particularly struck by the profound and negative impact the law as it currently stands can have on the daily lives of some of our most vulnerable citizens,” he said.
Among the proposals the committee is making to the Minister for Justice in drawing up the Bill is that its title be changed to Legal Capacity Bill. Language was important, he said, and rather than viewing people as “lacking capacity” they should be seen as having “different capacity”.
The committee questioned the use of a model of dealing with the needs of people with intellectual disabilities on the basis of their “best interests”, which it described as outdated and paternalistic, and which was applied even when the person themselves could decide what his or her best interests were.
The committee said that many contributors had said a court was not the best setting for deciding on someone’s capacity, and the general feeling was that a flexible informal tribunal which could meet with the persons in their setting was preferable.
It said it was very concerned to learn that some basic human rights were denied to people whose capacity was called into question. These included the right to marry, have a family, manage their own money, make medical decisions, have a sexual relationship, decide where to live, enter into a contract or vote.
Many of those who made submissions to the committee advocated supported decision-making, with the use of personal guardians or substitute decision-makers only as a last resort. The legislation should reflect the fact that there is a hierarchy of decision-making, it said, from having a drink to buying a house. At the moment, when a persons capacity is assessed, there is an “all or nothing” approach.
The committee was told that in some jurisdictions there was a frightening level of overuse of anti-psychotic drugs in people with dementia in nursing homes and other institutions, as a form of behavioural control. There was a need for a robust regime to control the use of such drugs.
It stressed that, when assessing a persons capacity, care must be taken not to set the bar too high. “The legislation could set the bar higher for people with disabilities and other conditions than we set for ourselves,” it said in the report. Mr Stanton said that one of the things that came out of the oral hearings was that people with disabilities had the right to make a mistake.
The report was welcomed by representatives of people with intellectual disabilities, including Inclusion Ireland.