Mental capacity law plans do not fulfil Ireland’s obligations, say rights groups – Irish Examiner, August 25, 2011

HUMAN rights experts have expressed serious concerns that proposed mental capacity legislation does not fulfil Ireland’s obligations under international law.

The purpose of legislation is to reform the laws for those who, due to illness, accident or intellectual disability, may have limited or reduced capacity to understand and articulate their needs and wishes in a legal context.

Amnesty International Ireland maintains that, in line with human rights law, we must move from a model of “best interests” to one that focuses on the potential of people.

The emphasis should therefore be on the ability of a person to regain capacity to make his or her own decisions.

Amnesty’s submission to the justice committee overseeing the legislation was informed by its “experts by experience” advisory group.

In this, people with mental health problems described how in periods of mental distress, decisions could be ‘impossible hills to climb’.

For most participants, the experience of having others make decisions for them was at times distressing, frustrating and scary.

However, some participants acknowledged that there were times when it was necessary for others to make decisions on a person’s behalf, and one described it as being at some moments and to some extent a relief.

In its submission, Mental Health Reform (MHR) said that people with a mental health condition should be able to avail of the same legal provisions as anyone else, MHR said.

“Ideas about the capacity of a person with a mental health condition are changing. In the past, certain diagnoses, such as schizophrenia or any psychotic condition, would have been presumed to entail a lack of capacity. Today, we know that the evidence contradicts these assumptions,” MHR says.

The organisation also set out legal loopholes where by people who are in long-term care have no review of their medications or treatment.

“In respect of incapacitated patients in all settings, the common law rules apply in respect of treatment. If the patient lacks capacity, treatment is determined on the basis of his or her best interests with no mechanism for review of decisions made or for external oversight of medication levels.”

MHR said the use of “chemical restraint” should be governed by clear rules and subjected to the same oversight as other means of restraint.

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