Legal capacity in Ireland

MDAC has returned from a mission to Ireland. On 29 November 2011, Oliver Lewis, MDAC’s Executive Director, with colleagues from Amnesty International Ireland, met with the Chair and Vice Chair of the Justice Committee of the Dáil Éireann (the House of Representatives, the lower chamber in the Irish Parliament) and then with senior civil servants at the Ministry of Justice. The purpose of the meetings was to outline international legal and comparative developments in legal capacity law reform. The Irish government has identified legal capacity as set out in Article 12 of the UN Convention on the Rights of Persons with Disabilities as a crucial area of law to reform, before it will ratify the Convention.

On 30 November, Oliver gave a keynote address at a seminar in Dublin which brought together over a hundred people, The address followed a speech by Kathleen Lynch, TD, Minister for Disability, Equality, Mental Health and Older People. Four experts by experience gave moving testimony about how the faults in Irish legislation, which is still regulated by the “Lunacy Regulations (IrelandAct” of 1871. Ireland’s antiquated system is one of the most restrictive in Europe. Each “ward of court” has a “committee” (which can simply be the person’s parents), and the committee has to apply to the High Court to take any legally-binding decisions, including utilising a bank account, or taking the ward of court outside the jurisdiction (a provision which may breach European Union law on freedom of movement).

Mary Farrell spoke about her son who was made a ward of court 23 years ago following a brain injury. She described the difficulties she faces battling against the system. She said there is no information about the responsibility of the “committee” and no support or training. She highlighted some practical tensions between autonomy and best interests, giving the example of how to ensure someone takes their medication which may prevent life-threatening seizures. Prior to the event she said to Amnesty International:

“Our son is not allowed to make certain decisions in his life – such as not being able to vote, open a bank account, marry, have medical procedures without permission of the court, leave the country without permission of the court and other such restrictions. Yet the reality is that some days our son is capable of very deep insights and quite capable of making many decisions on his own – and on other days he is not. This is true of every one of us.” She added: “We have been promised the new mental capacity legislation for some time now and when it is eventually published it has to be a good piece of legislation, because the fear amongst people like us is that it will be the old system by a new name.”

Paul Alford from Inclusion Ireland gave an account of his life when he lived in a bungalow in a hospital and when he worked at a sheltered workshop where he “earned”  10p per day. He now lives independently in the community, decides where to go and with whom to work, managing his own money, going to the doctor and travelling all over the world.

Bill Lloyd is an independent advocate and told the story of a lady with Alzheimers whose capacity was fluctuating and has found herself in a legal cul-de-sac with noone to turn to in order to force her sister to rescind an enduring power of attorney (which has never happened in the history of Ireland!). This story highlighted the need for a flexible response, one which the current legislation does not allow: “Why do the courts take an absolute view on capacity?”, asked Bill, rhetorically.

Finally, Jim Walsh, an expert in the area of psycho-social disabilities, presented on how people with mental health problems are vulnerable: to coercion in the mental health system, to dependency on the mental health care, and to being long-term disabled on benefits. He reviewed the need to introduce advance directives and representation agreements, and advocacy - devices which enable a person to take control of their own decisions and guard against other people taking them instead.

The seminar was chaired by Colm O’Gorman the Executive Director, Amnesty International Ireland, and featured Christine Gordon on supported decision-making in British Columbia in Canada, and Professor Gerard Quinn on how supported decision-making can be implemented in the Irish context.  



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