The long-awaited Assisted Decision-Making (Capacity) Bill 2013 was published last week. The Bill strongly reflects the recommendations of recent Law Reform Commission reports and 70 written submissions made to the joint committee on justice, defence and equality last year.
Its purpose is to reform the law and provide a modern statutory framework that supports decision-making by adults, enabling them to retain the greatest amount of autonomy possible in situations where they lack, or may shortly lack, capacity.
The Bill will make some of the following substantial changes: it will replace the wards of court system with a new legal framework; it will change the existing law to a functional one, whereby decision-making capacity is assessed on an issue and time-specific basis; it will provide for a range of different types of assistant decision-makers; it will establish an office of public guardian with supervisory powers to protect vulnerable people; it will modernise the law in relation to enduring powers of attorney; and it will provide for advance care directives (at committee stage).
Shift from overt paternalism
What is very welcome about the Bill is that it moves away from the paternalistic way of looking after what we decide are people's "bests interests" and recognises a person's right to make decisions about their own lives, enabling and supporting them in that decision-making.
Section eight sets out the guiding principles of the Act. Under these, capacity is always presumed unless the contrary can be shown. A second core element seeks to ensure that the assistant decision-maker must: reflect the right of the relevant person to his or her dignity, bodily integrity, privacy and autonomy; permit, encourage and facilitate the relevant person to participate as fully as possible; give effect to the past and present will and preferences of the relevant person; and take into account the beliefs and values of the relevant person.
The Bill provides a statutory framework for the appointment of different types of people to assist the vulnerable with decision-making. These are called assistant decision-makers, co-decision-makers and decision-making representatives. They can facilitate decisions, where specified, regarding the personal welfare, property and affairs and most medical treatment, of the relevant person. They are appointed by that person or the court. They must also submit annual reports to the public guardian. I would suggest these annual reports contain essential financial information also.
The Bill provides that rules of court and ministerial regulations will be made regarding various procedures specified.
Section 28 deals with emergency situations. The court may make an interim order in relation to a relevant person. This is a very important provision as it may protect a person from financial abuse.
In relation to enduring powers of attorney, the Bill specifies that attorneys can make healthcare decisions for donors, which is a welcome reform. However, the attorney cannot refuse life-sustaining treatment of the donor. Attorneys will also have to submit annual reports to the public guardian. Again, it is essential these reports contain relevant financial information.
The public guardian will supervise decision-making assistants, co-decision-makers, decision-making representatives and attorneys. It is essential there are appropriate specialised staff in that office.
In addition, the Law Society believes the public guardian should also be given a supervisory role in relation to the operation of the nursing home support legislation for people who lack capacity. The society has also recommended the Bill make specific provision for people who lack capacity and who may come within the provisions of the Mental Health Act, 2001.
Minister for Justice Alan Shatter has said the new specialist judges appointed to the Circuit Court will deal with applications under the Bill. It is therefore essential they obtain the necessary training.
Code of practice
Section 63 of the Bill states the public guardian may publish a code of practice. This code should be drawn up in consultation with interested parties and should be in place before the Bill becomes law.
Section six states expenses incurred by this legislation have to be sanctioned by the Minister for Public Enterprise and Reform. This provision could be used as an excuse to delay the legislation.
Shatter has said: “This reform of the law is long overdue and is a major step towards the ratification by Ireland of the UN Convention on the Rights of Persons with Disabilities.” Hopefully, our politicians will not delay passing this legislation to protect the most vulnerable.
John Costello is a consultant of Beauchamps Solicitors and a past president of the Law Society