Human rights-based capacity legislation long overdue

Ward of Court system determining a person’s legal capacity must be abolished


Ireland is at an important legal crossroads. New legislation determining legal capacity, or decision-making, is expected shortly. Get it right, and Ireland will be looked to as a world leader. Get it wrong, and the impact will be disastrous. Ireland has no excuse to get it wrong. The 2011 Programme for Government pledged new capacity legislation would be introduced in line with the Convention on the Rights of Persons with Disabilities (CRPD).

The CRPD does not create new rights, but reaffirms that all rights belong to all people equally, including people with disabilities. The convention was adopted by the UN in December 2006. Ireland signed in 2007, but is one of only three EU countries yet to have ratified (the others being Finland and the Netherlands).

In October 2011, Ireland was before the UN, having its human rights record assessed by other member states. Asked about Ireland’s failure to ratify the convention, Minister for Justice, Alan Shatter said the lack of CRPD-compliant capacity legislation was the problem, and he would ensure it was published shortly.

But 18 months have now passed, and seven years since Ireland signed the CRPD, signalling its intention to ratify. Despite the capacity bill being on the A-list for publication since January 2012, and Ireland recently elected to the UN Human Rights Council, there is still no sign of human rights based legislation.

Today, a conference in Dublin, organised by Amnesty International Ireland (AI) and the Centre for Disability Law and Policy (CDLP), NUI Galway, will examine what human rights-based capacity legislation would look like.

The convention promotes a social approach to disability, recognising it is society that creates the barriers which stop people from participating fully. It calls for a “paradigm shift”, recognising people with disabilities as holders of rights and not objects of charity. Promoting the central human rights principle of non-discrimination, any measure which interferes with the autonomy of a person with a disability, including the freedom to make their own choices, is in contravention of the convention.

The presumption that everyone can make decisions for themselves is contained in article 12 of the convention. It outlines that people with disabilities have exactly the same right as the rest of us to enjoy that “legal capacity”.

Imagine how you would feel not being allowed to decide for yourself where to live or what to spend your money on. It is something fundamental to who we are.

Therefore, respect for a person’s autonomy, “will” and preferences must be at the heart of any capacity legislation. The default position must always be: how will we support someone to make their own decision, not the decision we think they should make. This includes respecting the individual’s right to give and withdraw informed consent for medical treatment, to access justice, vote, marry, work, and to choose a place of residence.

States must legislate and implement, in consultation with organisations of people with disabilities, a blueprint for a system of supported decision-making which includes accommodations and access to support; and arrangements for the promotion and establishment of supported decision-making.

The key here is ensuring access to support. States must ensure this covers a range of initiatives. For some it would be recognition for an existing support arrangement, for others it may necessitate the establishment of schemes.

One of the reasons this is so important is because the right to enjoy access to legal capacity is absolutely central to ensuring the realisation of many other rights guaranteed by the convention. The dangers of not protecting access to this right are extremely serious. Denial of legal capacity often results in forced medical treatment; denial of the right to live independently and in the community; sterilisation without free and informed consent; the denial of the right to marry and parenthood; and the deprivation of the right to vote, stand for election and participate in public life.

These examples are not plucked from thin air, but relate very much to real life examples that have been observed by the UN Committee on the Rights of Persons with Disabilities, which monitors implementation of the convention.

Ireland’s Ward of Court system, the current mechanism used to make determinations about a person’s legal capacity, must be abolished as it fails to protect the rights of people subject to it. Wardship is an all or nothing system – a person either has full capacity or no capacity to make decisions. The legislative guidance for the wardship process is primarily derived from the Rules of the Superior Courts and the Lunacy Regulation (Ireland) Act 1871, so the system is widely acknowledged to be extremely outdated.

In other jurisdictions (including China, Peru and Hungary) the UN Committee has told states they must replace regimes of substituted decision-making by supported decision-making.

There can be no more excuses. People subject to this Victorian law are asking if they will ever see legislation that adequately protects their human rights.

Last year AI and the CDLP, alongside 13 other civil society organisations, came together to publish a set of Essential Principles for Irish Legal Capacity Law, which outlined what the bill must contain. The Oireachtas Joint Committee on Justice and Equality held a series of hearings in 2012 and almost exactly a year ago published a report which included encouraging recommendations.

Armed with the clear directions of the CRPD and this additional input, the scene is set for Ireland to choose the right road at these crossroads, and produce legislation that reflects the spirit and ethos of the Convention. I look forward to seeing Ireland lead the way in adopting this paradigm shift in its capacity bill.

Gábor Gombos is adjunct professor at NALSAR Law University in Hyderabad, India and at the Centre for Disability Law and Policy, NUI Galway

Further details on today’s conference:

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