Mental Health Commission Symposium Scheme of Mental Capacity Bill 2008

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

2. 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. Approach to Capacity • Recognition of Constitutional Rights and Human Rights • Functional Approach • Total incapacity – Shtukaturov V Russia 44009/05 27 June 2008 • Recent acknowledgements • MHC, HSE, HIQUA, Medical Council, Legislation + Case law

5. Scheme of the Mental Capacity BillPrinciples • 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. 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. 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. Mental Health Act 2001 • 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. Thank you Patricia T Rickard-Clarke Commissioner Law Reform Commission