New mental capacity Bill approved


Proposals to draft a new Mental Capacity Bill have been approved by Government, the Minister for Justice, Equality and Law Reform, Dermot Ahern announced today.

The main purpose of the Bill is to replace the existing Wards of Court system for adults with a modern statutory framework governing decision-making on behalf of people who lack capacity.

The Bill will replace the Lunacy Regulation (Ireland) Act 1871, currently the chief legislation in this area.

The biggest change the new Bill will bring is in relation to what exactly constitutes a lack of capacity.

Lack of capacity will be defined by focusing on the particular time when a decision has to be made and on the particular matter to which a decision relates and not on a capacity to make decisions generally.

This is a significant change from the current system, where a finding of incapacity applies to every decision a person may make and every legal transaction they may wish to enter into.

In line with international best practice, as well as a recommendation of the Law Reform Commission, capacity will be understood as the ability to understand the nature and consequences of a decision in the context of available choices at the time the decision is to be made.

Announcing the decision to draft the new Bill, Mr Ahern said the current system was incapable of coping with the existing and projected demographic growth of persons who lack capacity.

“The Government recognises that the current system is outdated,” he said.

“This legislation will provide greater protection for a range of adults; from those with intellectual disabilities, persons suffering from dementia or mental illness and persons who have acquired brain injuries through trauma or accident.”

Mr Ahern said the Bill would clarify the law for who take on responsibility for people who lack capacity.

“It provides statutory protection against liability for certain acts done in connection with the care or treatment of another person and allows for normal everyday decisions to be made on their behalf without reference to the court,” he said.

"However, certain decisions, such as the question of the withdrawal of artificial life-saving treatment, will be reserved to the High Court. Provided the carer does not act negligently or criminally then no issue can arise in relation to the decisions they make on behalf of the person who lacks capacity.”

Another key feature of the Bill is the establishment of an independent Office of Public Guardian, whose primary function will be to supervise persons appointed by the courts to perform guardianship or decision-making functions on behalf of incapacitated persons.

The Bill will also give effect to two important international Conventions - the UN Convention on the Rights of Persons with Disabilities and the Hague Convention on the International Protection of Adults.