Essential Principles for Irish Capacity Legislation

Letter published in The Irish Times


We welcome the Oireachtas Justice Committee initiative under Deputy David Stanton to hear from interested parties on legal capacity prior to publication of the Mental Capacity Bill. The report on the Bill is published today; we hope that the committee’s recommendations will be taken on board by Ministers Shatter and Lynch.

We call on the Government to introduce legislation in line with Essential Principles: Irish Legal Capacity Law; a document drawn up by NGOs in consultation with Irish experts. Along with the Justice Committee report, these principles should guide and inform this important new law. They are based on best international practice and the guiding ethos of the UN Convention on the Rights of Persons with Disabilities. Putting these principles in law would enable the Government to honour its Programme for Government commitment to introduce capacity legislation in line with the UN Convention. It would also mean a huge and very real improvement to people’s lives.

Legal capacity is about making decisions and having such decisions respected in all areas of life (for example decisions about your medical treatment, how you spend your money, where you live, etc).

Ireland currently has the most outdated capacity law of its kind in Europe – the Lunacy (Regulations) Act dating from 1871.

This new law will apply to all of us, but has particular and profound implications for tens of thousands of people experiencing mental health problems, intellectual disabilities, dementia, neurological difficulties and acquired brain injuries, their families and friends. An approach based on individual autonomy and supports would also be consistent with other areas of Government policy and reform in disability, mental health and older people.

Our key principles include:
1. Supporting people to make decisions must be central to the approach and vision of this law. There should be a presumption of capacity by all.
2. The “will and preferences” of the individual rather than the principle of “best interests” should be placed at the heart of this legislation.
3. The courts are not an appropriate forum for this issue. A specialist, multi-disciplinary body should be established as the independent body to support people based on their will and preferences.
4. Supports such as advance care directives (or “living wills”), advocacy and peer support, offer cost effective and human rights compliant options.
5. This legislation should introduce a regime of supports. Only as a last resort, when all other supports have been exhausted, should a decision be taken on someone’s behalf based on the best understanding of their will and preferences.
6. There should be robust and effective safeguards and monitoring systems.

Yours, etc,

EAMON TIMMINS (Age Action Ireland);
MAURICE O’CONNELL (Alzheimer’s Society of Ireland);
COLM O’GORMAN (Amnesty International Ireland);
Prof GERARD QUINN (Centre for Disability, Law and Policy NUIG);
JOHN DOLAN (Disability Federation Ireland);
DEIRDRE CARROLL (Inclusion Ireland);
COLETTE NOLAN (Irish Advocacy Network);
MARK FELTON AINE HYNES (Irish Mental Health Lawyers Association);
BRIAN HOWARD (Mental Health Ireland),
ORLA BARRY (Mental Health Reform),
LOUISE LOUGHLIN (National Advocacy Service),
BRIAN O’DONNELL (National Federation of Voluntary Bodies),
MAGS ROGERS (Neurological Alliance of Ireland),
PAUL GILLIGAN (St Patrick’s University Hospital),
Dr ANNE-MARIE O’NEILL (Academic), C/o Amnesty International Ireland, Fleet Street, Dublin 2.


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