1. Mental Health Commission Symposium Scheme of Mental Capacity Bill 2008
Patricia T Rickard-Clarke
Law Reform Commission
26 November 2009

2. Scheme of the Mental Capacity Bill
Overview
Background
Scheme of the Mental Capacity Bill
Principles
Definition and capacity test
Best Interests
Structures
Specific issues
Mental Health Act 2001
Consolidation

3. Background Law Reform Commission Work
Consultation Paper on Law and the Elderly 2003
Consultation Paper Vulnerable Adults and the Law: Capacity 2005
Report on Vulnerable Adults and the Law 2006
International Obligations
UN Convention on the Rights of Persons with Disabilities
The European Convention on Human Rights
Council of Europe Recommendation (99)4 of the Committee of Ministers to Member States on Principles Concerning the Legal Protection of Incapable Adults February 1999
Council of Europe Recommendation on Principles concerning Powers of Attorney and Advance Directives for Incapacity September 2009

4. Recognition of Constitutional Rights and Human Rights
Approach to Capacity
Recognition of Constitutional Rights and Human Rights
Functional Approach
Total incapacity – Shtukaturov V Russia 44009/ June 2008
Recent acknowledgements
MHC, HSE, HIQUA, Medical Council, Legislation + Case law

5. Scheme of the Mental Capacity Bill Principles
Principles apply for all purposes of the Act
No intervention unless necessary having regard to needs + individual circumstances
Every effort made to assist
Due regard to rights – dignity, autonomy, privacy, bodily integrity and least restrictive.
Account of past and present wishes
Any act or decision - best interests

6. Definition and Capacity test
Statutory presumption of capacity
Definition of capacity – to understand nature + consequences of decision, available choices at the time decision is to be made
Lack of capacity – understand information, retain information, use information and communicate
Reasonable foreseeable consequences
Balance of probabilities

7. Best Interests Any act done or decision made – in best interests
Must consider all relevant circumstances
Whether capacity is likely and if so, when
Permit and encourage person to participate
Take into account past and present wishes, beliefs and value, and other factors
Take into account views of specified others
Relevant circumstance
Re P [2009] EWHC 163 (Ch) 9 February 2009

8. Informal Decision Making
A person - any act in connection with personal care, health care or treatment
Comply with requirements
Assess capacity
Reasonably believes lack of capacity
In best interests
Shall not incur any liability as if person consented and had capacity
- Civil liability for loss or damage
- Criminal liability – negligence

9. Jurisdiction for decisions on capacity
Concurrent – High Court and Circuit Court
Rateable valuation of land exceeds €254
President or other judge of High Court
Judge of Circuit Court where person resides or had business
Court of Care and Protection
All applications heard in private
Rules of Court
Subject to exclusive jurisdiction of High Court for certain matters

10. Court may make declaration
Powers of the Court
Court may make declaration
Whether a person has or lacks capacity to make a decision specified in declaration
Whether a person has or lacks capacity to make decisions on such matters described in the declaration
The lawfulness or otherwise of any act done, or yet to be done, in relation to that person
Court may make interim orders/give direction pending determination

11. Rules of Court Rules shall make provision for:
Manner + form as to how proceedings are commenced
The parties entitled to be notified and be parties to proceedings
Enabling the application to be disposed of without a hearing
Enabling the court to proceed with, or with any part of a hearing in the absence of the person to whom the proceeding relate
As to what may be received as evidence
Shtukaturov v Russia No 44009/05 June 2008
without seeing or hearing the applicant unreasonable , unfair and in breach of Art 6

12. Power of the Court to Appoint Personal Guardian
Court can if urgent make decision itself or
Appoint personal guardian
powers should be limited in scope and duration
can make further orders and impose duties
can give directions and make appointments even though no application before Court
can vary or discharge orders
can revoke appointment or vary powers

13. Powers of Personal Guardian
Personal Welfare decisions
Giving or refusing consent to or continuance of treatment by a person providing healthcare
Does not include consent/refusal of life-sustaining treatment
Property and affairs
Public Guardian may be most appropriate person
Personal guardian agent
Restriction on Powers
Person responsible for healthcare - cannot change
Do no act that is intended to restrain unless.....

14. Issues
Decisions on capacity to be subject to review at regular intervals
Court review
Intervals of not more than 36 months
Existing Wards of Court
– Should be mandatory
Lunacy Regulations (Ireland) Act to cease to have effect
After date of coming into force of Mental Capacity Act
Scheme for legal representation where required
Court to decide if warranted

15. Public Guardian Functions
Establish and maintain registers of EPAs, personal guardians + orders/declarations of Court
Supervise donees under EPAs + personal guardians
Direct a Special/General Visitor to visit....
Receive security which the court requires
Receive reports from attorneys + personal guardians
Reporting to Court as Court requires
Deal with representations + complaints...limited
Provide information + advice about performance of functions – attorneys + personal guardians
Nominate a person to be personal guardian
Prepare and issue Codes of Practice

16. Involuntary detention Treatment not requiring consent
Mental Health Act 2001
Involuntary detention
Consent to treatment still required (Sec 56)
Treatment not requiring consent
Treatment is necessary and by reason of mental disorder patient incapable of consenting
Consent to certain forms of treatment
Psycho-Surgery
Electro-convulsive therapy

17. Interaction Mental Health Act and Mental Capacity legislation
Voluntary patient
Consent necessary
EH v St Vincent’s Hospital and others 2009
Person who lacks capacity
Consent to treatment (Sec 56) still required
Transition from involuntary to voluntary patient
Interaction Mental Health Act and Mental Capacity legislation

18. Enduring Powers of Attorney
Personal welfare decisions
Giving or refusing consent to the carrying out or continuation of a treatment by a person providing healthcare for the person who lacks capacity
Mental health care
Restriction – life-sustaining treatment

19. Advance Care Directives
Council of Europe Recommendation
Law Reform Commission’s Report
Person themselves
Health Care Proxy
Enduring Power of Attorney
Advance Care Directives and Mental Health Care

20. Consolidation Capacity provisions Health (Repayment Scheme) Act 2006
Nursing Homes Support Scheme Act 2009
Mental Capacity Bill 2008

21. Patricia T Rickard-Clarke Commissioner Law Reform Commission
Thank you
Patricia T Rickard-Clarke Commissioner Law Reform Commission