EMPOWERING CAPACITY Functional approach and supported decision making Máirín McCartney 19 th October 2011

WHAT IS LEGAL CAPACITY The ability to exercise rights or enter into a transaction Three capacity models status approach outcome approach functional approach Different levels of capacity

INTERNATIONAL HISTORICAL POSITION (Adel Conference Berlin 24/09/2010) Early Model – Roman Law Traditional Civil Law Model Welfare Model Assistance Model

INTERNATIONAL HISTORICAL POSITION (Adel Conference Berlin 24/09/2010) Early Model – Roman Law Protection and Power Preserve family property

INTERNATIONAL HISTORICAL POSITION (Adel Conference Berlin 24/09/2010) Traditional Civil Law Model individual loses all competence objective best interest principle Spain and Czech Republic

INTERNATIONAL HISTORICAL POSITION (Adel Conference Berlin 24/09/2010) Welfare Model paternalistic subjective best interest principle Austria & Germany

INTERNATIONAL HISTORICAL POSITION (Adel Conference Berlin 24/09/2010) Assistance Model supported rather than substituted decision making exercising all capabilities Denmark-Regional Administration rather than Court

Functional Test Mary Donnelly – Assessing Legal Capacity – Judicial Studies Institute Journal 2007 – capacity specific to the task in hand Re. Park’s estate individual lacked capacity to make a Will but did not lack capacity to marry earlier the same day. Task specific approach to capacity

THE CHALLENGE To keep the balance between maximum autonomy and adequate protection Self Determination –v- Duty of Care Privacy –v- Surveillance Needs and capacity of individual should determine the duties of the decision making assistant/representative rather than generalisation of duties Supported Decision Making/Legal Capacity Board –v- Court Regular checks – inspection Regular control – review 3/5 yearly Supervision by advisory board Supporting capacity using social model rather than medical/legal parameters Supported rather than substitute decision making

HUMAN RIGHT TO AUTONOMY & PROTECTION Right to liberty and security Right to chose place of residence No interference in privacy, family or home Protect against and prevent all forms of exploitation, violence and abuse Minister for Justice Equality & Defence Alan Shatter address to Human Rights Council in Geneva 6 th October 2011 “It is our belief that it is a universal human rights requirement that government must act toward each person on the basis, first that he or she has a irreducible, non-tradable, intrinsic value and second, that he or she has a sovereign right and responsibility for achieving an authentic life of character and value for himself or herself consistent with others having a similar right”……“it is never acceptable for any government …….to exclude disabled persons from inclusion …..or to allow human neglect through indifference”

Capacity Supports Holistic social assessment rather than legal/ medical assessment only. Existence of legal representation. Participation of individual whose situation is being considered. “Softer” skills required to assess capacity supports. A rigorous review of expert medical evidence presented.

Role of Medical Evidence Medical evidence may be sought where there is a suspicion of mental illness or other condition suggesting incapacity. A cognitive test which is not a functional test will have limited relevance in determining capacity. What weight should be attached to the medical assessment ?

REFUSAL OF MEDICAL TREATMENT Fitzpatrick –v- F. K. (No. 2) [2008] 1 EH C104 (Laffoy J) - Six Principles set out for determining capacity A Ward of Court (No. 2) [1996] 2 IR 79 Re. C (Adult: Refusal of Treatment) [1994] 1 WLR 290 – Three Step Approach set out 1. Comprehending and retaining the treatment information 2. Believing it 3. Weighing it to arrive at a choice

Current Irish Position Lunacy Regulation (Ireland) Act, 1871 Wardship Traditional legal model- status approach Individual loses all capacity to High Court Breach of Human Rights Convention No review No participation by person the subject of the application

Inclusion Publication “Who decides and how” 2003 Law Reform Commission (LRC) Consultation Paper – Law and the Elderly June 2003 LRC Consultation Paper Vulnerable Adults and the Law Capacity May 2005 LRC Report Vulnerable Adults and the Law December 2006 UN Convention on the Rights of Persons with Disabilities 2006 Mental Capacity and Guardianship Bill 2007 Scheme of Mental Capacity Bill 2008 LRC Consultation Paper on Bioethics : Advance Care Directives 2008 LRC Report on Bioethics : Advance Care Directives 2009 Recent developments

2006 UN Convention on the Rights of Persons with Disabilities (CRPD) Article 3 - Principles (a)Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices and independence of persons (b)Non-discrimination (c)Full and effective participation and inclusion in Society (d)Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity (e)Equality of opportunity (f)Accessibility (g)Equality between men and women (h)Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

Persons with disabilities have the right to recognition as persons before the Law. Persons with disabilities enjoy legal capacity on an equal basis in all aspects of life. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. …………… CRPD Article 12 Equal recognition before the Law (1)

CRPD Article 12 Equal recognition before the Law (2) Any measures relating to the exercise of legal capacity have to recognise the rights, will and preferences of the person and tailored to the persons circumstances and apply for shortest time and be subject to regular review by an impartial authority or judicial body. States Parties shall take all appropriate measures to ensure legal rights to own or inherit properties, control financial affairs and have equal access to bank loans, mortgages and ensure they are not arbitrarily deprived of their property.

SCHEME OF MENTAL CAPACITY BILL 2008 OVERVIEW (1) replacing wardship with guardianship. Circuit Court or High Court to appoint personal guardian – Court of Care and Protection. Guiding principles – Head 1 Definition of capacity – Head 2 Validity of informal decision making -Head 16 ………………

SCHEME OF MENTAL CAPACITY BILL 2008 (OVERVIEW 2) Best Interest – Head 3 Court can determine capacity Personal welfare and property Public Guardian 3 Year Reviews Heads 19 and 20 refer to the existing common law in relation to Wills, marriage, adoption, consent to sexual relations, voting and membership of jury Part 3 deals with amendments to the Powers of Attorney Act, 1996

SCHEME OF MENTAL CAPACITY BILL 2008 GUIDING PRINCIPLES (1) presumption of capacity no intervention unless necessary all practicable steps to help make decisions have to be taken not to be treated as unable to make decision merely because it is unwise decision …………….

SCHEME OF MENTAL CAPACITY BILL 2008 GUIDING PRINCIPLES (2) least restrictive act respect dignity, bodily integrity, privacy and autonomy of individual past and present wishes views of other persons with interest best interests

SCHEME OF MENTAL CAPACITY BILL 2008 Definition of capacity - Head 2 Capacity means the ability to understand the nature and consequences of a decision in the context of available choices at the time the decision is to be made Lack capacity if unable to understand or retain (even if for short time) or weigh the information or to communicate the decision Decided on balance of probabilities

SCHEME OF MENTAL CAPACITY BILL 2008 PUBLIC GUARDIAN Register of Court Orders appointing personal guardians Supervising personal guardians Dealing with complaints about personal guardians Providing information and advice to personal guardians Prepare Codes of Practice on : –Assessing capacity –Guidelines for personal guardians –Medical treatment

CONCERNS WITH THE PROPOSED SCHEME Should be a Legal Capacity Board rather than Court (Guardianship Board recommended by 2006 LRC Report) Should be more emphasis on supported decision making rather than substitute decision making. Capacity Legislation should cover all areas and not distinguish some. Terminology. Advocacy and legal aid should be included. Advance care directives should be included. Best interests principal may be incompatible with guiding principles Existing Wards of Court – Obligation to apply to Court for review to be included under new Scheme – not automatic

CAPACITY LEGISLATION SHOULD INCLUDE Supported decision making rather than guardianship A legal capacity board or supported decision making board rather than Court. Holistic approach to supporting decision making not just legal or medical approach. Avoid terms that dilute capacity – guardianship, best interests, care and protection.

CONCLUDING THOUGHT Professor Michael Bach of the Canadian Association for Community Living “An individual’s full legal capacity is fully recognised if they can demonstrate to others their will and intent, and if not, if their “personhood” can be articulated by others designated as sufficiently knowledgeable to understand that person’s unique communication forms and life history. Competency is attached to the decision making process and not to the person, thus circumventing some of the issues associated with “autonomous” decision making, where it is the person’s intellectual and communicational abilities which are assessed as capable or not”.