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Legal Capacity

General introduction to Irish law on legal capacity

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Legal Capacity

  1. 1. Darius Whelan, School of Law, UCC Legal Capacity - LW6616
  2. 2. • Current Law – Wards of Court – Enduring Powers of Attorney (EPAs) • Progress towards Reform • New Act: – Assisted Decision-Making (Capacity) Act 2015 – Commentary on Act 2 Summary
  3. 3. Mary Donnelly, ‘The Assisted Decision- Making (Capacity) Act 2015: implications for healthcare decision-making’ (2016) 22 Medico-Legal Journal of Ireland 65 (Westlaw IE). 3 Key Reading
  4. 4. 4 Wards of Court • Lunacy Regulation (Ireland) Act 1871 • Person is “of unsound mind” and incapable of managing his/her person or property • Powers exercised by President of High Court and Registrar of Wards of Court • Procedures not robust; paternalistic legislation • A “Committee” is appointed for the ward – E.g. person’s spouse or a solicitor • Committee deals with property of ward on ward’s behalf • Status approach to capacity • The ward may not buy property, sell property, travel abroad or marry • But they may make a will assuming that the common law requirements for capacity are satisfied • No automatic reviews
  5. 5. – Powers of Attorney Act 1996 – A Power of Attorney appoints a person, called the donee or attorney, and invests him/her with power to act either generally or in a manner specified on behalf of the donor who gives the power – The EPA allows power to continue after donor loses his/her mental capacity and contains statement that donor intends power to be effective during subsequent mental incapacity of donor – When EPA is executed, it has no real legal effect. It will only come into effect when it is registered – Application to register may only be made when attorney has reason to believe that donor is or is becoming mentally incapacitated 5 5
  6. 6. 6 • Once the EPA is registered, the attorney may have power over the donor’s property, financial and business affairs and personal care decisions • In Personal care decisions which involve where the donor should live, donor’s diet and dress, social welfare benefits, etc. the attorney must make decisions in the best interests of the donor. • The personal care decisions do not currently extend to decisions on medical treatment or surgery (but see 2015 Act – not yet commenced - below)
  7. 7. Law Reform Commission: • Consultation Paper on Law and the Elderly (2003) • Consultation Paper on Vulnerable Adults and the Law: Capacity (2005) • Report on Vulnerable Adults and the Law (2005) Department of Justice: • Scheme of Mental Capacity Bill 2008 • Assisted Decision-Making (Capacity) Act 2015 - not yet commenced Progress towards reform 7
  8. 8. 8 Assisted Decision-Making (Capacity) Act 2015
  9. 9. Assisted Decision- Making (Capacity) Act 2015 • Passed December 2015 • Most of the Act has not been commenced, and will take a number of years to commence • Abbreviated title in slides: ADMCA 2015 9
  10. 10. Capacity means decision-making capacity Personal welfare or financial issues Operate bank account, spend money, decide where to live, make medical decision Capacity is to be construed functionally – ability to understand nature and consequences of decision at time decision is made Person lacks capacity if unable to • Understand info relevant to decision • Retain that information • Use/ weigh that information • Communicate his/her decision, perhaps with assistance or through a third party Act recognises that sometimes person may only be able to retain info for short period only 10
  11. 11. • Presumption of capacity unless contrary shown • All practicable steps must be taken to help person to make decision • Making an unwise decision does not make person unable to make decision • Interventions should only be made where necessary • Interventions must minimise restrictions and respect dignity, bodily integrity, privacy and autonomy • Intervener (e.g. person helping with decision) shall facilitate person to participate … Cont’d > Guiding Principles 11
  12. 12. Intervener shall • give effect to person’s past and present will and preferences • take into account person’s beliefs and values • consider views of any person named by person • consider views of decision-making assistant, co- decision-maker, decision-making rep. or attorney Intervener may consider views of carers; people with bona fide interest in person’s welfare; healthcare professionals [Act does not contain a ‘best interests’ test] 12
  13. 13. 13 Decision-Making supports Co-Decision Maker (CDM) Decision-Making Assistant (DMA) More formalities Substitute decision- maker appointed by person before he/she loses capacity Enduring Power of Attorney (EPA) Donor -- > Attorney Substitute decision- maker appointed by court Advance Healthcare Directive Decision-Making Representative (DMR) May also include Designated Healthcare Representative (DHR) Refuse or request treatment in advance
  14. 14. • Person may appoint a DMA to assist them in making decisions re personal welfare or property and affairs or both • Person must consider their capacity is in question or may shortly be in question • DMA can assist person in obtaining info; explain info; ascertain will and preferences of appointer; ensure appointer’s decisions are implemented • Notify office of Director of Decision Support Service Decision- making assistant (DMA) 14Photo by Joshua Earle from Unsplash CC0
  15. 15. • Person appoints CDM to jointly make decisions with them • CDM must be trusted relative/ friend • Doctor must state person has capacity • Circuit Court approves the co-decision- making agreement Co-Decision Maker (CDM) 15 Picture – CourtsService.ie
  16. 16. 0 Circuit Court appoints DMR for person 0 Person lacks capacity to make decisions, even with CDM 0 DMR may make decisions 0 This is substitute decision-making 0 Supervised by office of Decision Support Service 16
  17. 17. 0 Extends EPAs to deal with healthcare decisions – giving or refusing treatment, other than refusing life- sustaining treatment 0 Attorneys will apply to office of Decision Support Service for registration of EPA 0 Annual reports to DSS 17
  18. 18. 0 Advance Healthcare Directives 0 An advance expression made by the person of his/her will and preferences concerning treatment decisions that may arise if he/she subsequently lacks capacity 0 Must be signed and witnessed 0 (Does not require medical evaluation before being made) 0 Also signed by Designated Healthcare Representative (DHR), if one is named 0[e.g. friend or relative] 0 AHD shall be complied with unless at the time it is proposed to treat maker of AHD he/she is involuntarily detained under Mental Health Act 2001 0 General law on assisted suicide still applies 18
  19. 19. Relationship between ADMC Act and Mental Health Act 2001 0 S.136 - nothing in the ADMCA authorises a person to give a patient treatment for a mental disorder or to consent to a patient being given such treatment where the patient's treatment is regulated by the MHA 0 Mary Donnelly – 0 - S.136 refers to consent to treatment only. A person could be authorised by a patient (by means of an EPA) to refuse treatment on the patient's behalf notwithstanding that the patient's treatment is regulated by the MHA. …continued next slide 19
  20. 20. 0 - The ADMCA principles continue to apply and these must be complied with where treatment decisions are being made for a person, even if involuntarily admitted under the MHA. 0 - Nothing in the ADMCA disapplies the support frameworks where a person has been admitted under the MHA. Where a person has appointed a DMA or CDM, these can assist the person in making a decision about treatment and in reaching the standard for capacity (and thus activate the right to refuse treatment) under the MHA. 20
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  22. 22. 0 Decision Support Service – 0 http://www.mhcirl.ie/DSS/ 0 HSE page on ADM (Capacity) Act – 0 http://www.hse.ie/eng/about/Who/QID/Other- Quality-Improvement- Programmes/assisteddecisionmaking/ 0 Refers to development of Codes of Practice by National Disability Authority 0 Dept of Justice and Equality - €3m allocated to DSS in 2018 0 http://www.justice.ie/en/JELR/Pages/PR17000324 22
  23. 23. Commentary on Bill: 0 Blog Posts by Lucy Series; Eilionóir Flynn; Darius Whelan; Mary Donnelly 23
  24. 24. 0 No explicit reference to "best interests" - a major advance on the 2008 Heads of the Bill. 0 The "best interests" principle has been interpreted in such a paternalistic manner by the Irish courts that it would have been unworkable in the Capacity Bill. What's more, it's out of step with modern thinking on the Convention on the Rights of Persons with Disabilities (CRPD). 0 The CRPD is explicitly recognised in the functions of the DSS. 24
  25. 25. 0 It is a real pity that the Bill does not establish multidisciplinary tribunals for dealing with applications regarding lack of capacity, etc. A three- person tribunal similar to the Mental Health Tribunals would be a more suitable forum than the Circuit Court for resolution of these issues. 0 The Bill does not fully resolve the issue of people who lack capacity and are admitted to a residential centre on a "voluntary" basis but are de facto detained in the centre. 25
  26. 26. 0 The Bill creates forms of substitute decision-making, most clearly with the court appointment of a Decision-Making Representative (ss.23-27). Because of Article 12 of the CRPD (which Ireland has not yet ratified), regimes of substitute decision-making should be avoided as much as possible and this Bill may not go far enough to comply properly with the CRPD (for more detailed critique on this aspect see blog posts by Eilionóir Flynn and Lucy Series). 26
  27. 27. 0 The Bill does not provide for automatic legal representation in any category of case. Instead, the person will need to apply for legal aid through the civil legal aid legislation. This contrasts sharply with the automatic representation under the Mental Health Act 2001. 27
  28. 28. Deprivation of Liberty Safeguards 28
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