Social Structures
Author: Hannah Casey, ALL Blog Editor and PhD Candidate in the Department of Psychology
In 2015, the Assisted Decision-Making (Capacity) Act (the Act) was signed into Irish law. This Act aims to ensure that Ireland is legally compliant with Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD/the Convention). Article 12 states that a person with disabilities has the right to legal capacity on an equal basis with others, and that they are entitled to government assistance to exercise that capacity. Ireland ratified the UNCRPD in 2018, in the belief that the Capacity Act ensured full legal compliance with the Convention. However, as of now, the Capacity Act, while signed into law, has not been fully commenced by the Irish government. This is despite the promise that it would be fully commenced by the end of June 2022.
This delay has been attributed to several factors by the government. Primarily, there have been a number of amendments made to the Act, collectively known as the Assisted Decision-Making (Capacity) (Amendment) Bill, 2022. These amendments have been introduced in an effort to clarify aspects of the Capacity Act, and address more controversial aspects of it, such as the regulation of the use of restraint, and public hearings. This delay, and indeed the continued delay in commencement over the past seven years, has been cited as necessary to ensure the proper resources are in place, and the legislation correctly laid out. An admirable sentiment, but one which is proving costly to those whom the law will primarily affect.
Under the current Ward of Court system in place in Ireland, people who have been placed under Wardship are in the care of their committee, who are legally allowed to make decisions for and about the person, without needing to involve or consult the person themselves. When the Capacity Act is fully commenced, the Ward of Court system will be abolished, and there will be a presumption of capacity for all people, unless there is a formal capacity assessment result that claims otherwise. Under the current system, it is not in line with the UNCRPD views on capacity, and means that Ireland is not honouring the Convention, despite having ratified it over 4 years ago. The delay in legislation means that this current outmoded and outdated system can continue, with the court continuing to hear applications for Wardship. The people being placed under Wardship have no legal way of exercising their right to decide for themselves under this system. Furthermore, the Decision Support Service (DSS), a government organisation established to support people in need of assistance in decision-making, made an official statement on the matter. Due to the delay in commencement of the Act this summer, they are unable to open their doors until it is officially in place. This means that an important support network and service remains unavailable to those who need support to make their own informed decisions.
The Amendment Bill, as well as delaying the commencement of the Capacity Act, also fails to address key issues within the original document. Despite having gone before the Seanad to discuss this aspect in 2019, there is still no guarantee that persons detained under the Mental Health Act will have their advance directives respected. Furthermore, the Act has not been updated to reflect the repeal of the 8th Amendment, and still prevents pregnant people from making advance care directives that would have a “deleterious effect” on the unborn foetus. There have been multiple calls for action over this, including from Professor Eilionóir Flynn, director of the NUI Galway Centre for Disability Law and Policy, and from Inclusion Ireland. The Bill is currently at Report Stage, and many are calling for these serious issues to be addressed when the Oireachtas returns from their summer recess.
The Capacity Act represents a vital step forward in legislation and human rights in an Irish context. The lack of preparedness on the part of the Irish government, seven years after its original inception, is unacceptable. In the course of my own research, I have interviewed families and staff who still do not know what the Act will mean for them or for the people they support and care for. I am attempting to rectify this lack of information by speaking to them along with people with intellectual disabilities themselves, to find out what kind of decisional support they would like to have under the new law. However, as long as the old laws remain in place, it is difficult for their requirements to be respected. It is vital that the government takes note of the concerns and opinions of the people this law will affect to ensure Ireland can – finally – take this important step forward into equality for people with disabilities.