Inclusion Ireland

Inclusion Ireland Members Meeting Saturday 19 November 2011 Patricia T Rickard-Clarke

Capacity • In general terms capacity refers to a person’s ability to perform a given task • In a legal context , capacity is used to refer to a person’s ability to make a decision with legal consequences. • Capacity, in the legal sense, is a threshold requirement for persons to have power to make enforceable decision for themselves • Capacity is ‘the pivotal issue in balancing the right to autonomy in decision making and the right to protection from harm’

Consideration of issues relating to Capacity- Law Reform Commission’s Work • Capacity to make decisions • CP Law and the Elderly 2003 • CP Vulnerable Adults and the Law: Capacity 2005 • Report Vulnerable Adults and the Law 2006 • Advance Care Decisions • CP Bioethics: Advance Care Directives 2008 • Report Bioethics: Advance Care Directives 2009 • Sexual Offences • CP Sexual Offences and Capacity to Consent 2011

International Obligations 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 Hague Convention on the International Protection of Adults 2000 UN Convention on the Rights of Persons with Disabilities 2006 (singed in 2007 but not yet ratified) Council of Europe Recommendation on Principles concerning Powers of Attorney and Advance Directives for Incapacity September 2009

Existing Structures (1) • Next of kin • No general authority • Common law • Presumption of capacity • Different tests for capacity in separate contexts • Lunacy Regulation (Ireland) Act 1871 • Wards of Court • Status approach to capacity • No participation by person subject of application • No review

Existing Structures (2) • Enduring Power of Attorney • Includes property and affairs • Includes personal care decisions • No provision for health care decisions • Advance care directives • Legally recognised • No statutory provision • Sexual Offences • Criminal Law Sexual Offences Act 1993 (Status) • Fails to provide clarity on rights of person with ID to have a fully-expressed consensual sexual life • Does not deal with sexual abuse or exploitation generally

Proposed • Capacity legislation • Functional approach defines capacity as the ability, with assistance if needed, to understand the nature and consequences of a decision at the time it has to be made within the context of the available range of choices and to communicate that decision • Statutory presumption of capacity • Guiding Principles (based on rights/capacity) • Statutory definition of capacity • New Structure

Proposed • Enduring Power of Attorney • Functional Test • Welfare decisions • Advance Care Directives • Right to self determination • Formal legal framework • Sexual Offences • Functional Test • Protection against abuse and exploitation

Guiding Principles • Principles apply for all purposes of the Act • Statutory Presumption of capacity • No intervention unless necessary having regard to needs + individual circumstances • Every effort must be made to assist person • Unwise decision does not mean lack of capacity • Least restrictive of person’s rights + freedom of actions • Due regard to respect the rights – dignity, autonomy, privacy and bodily integrity • Account of past and present wishes • Account of the views of any person with an interest in welfare of person who lacks capacity when known • Any act or decision - best interests

Definition of Capacity • Definition of capacity – to understand nature + consequences of decision in the context of available choices at the time decision is to be made • Lack of capacity – unable to understand information, retain information, use or weigh that information as part of the decision making process or communicate decision • Able to understand with explanation • Reasonable foreseeable consequences - deciding one way or another or failing to make decision • Balance of probabilities – civil standard

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 - Those which the person making the determination is aware - Which would be reasonable to regard as relevant • Bourke v O’Donnell and Bank of Ireland 2010 IEHC

Assessing Capacity • When should it be assessed? • Who should assess it? • Creating the right environment • What information is relevant • Communication (form, language, volume) • Put person at ease • When is medical evidence required? • For use in court or other legal processes • As required by Regulations

Health Care Decisions • Informed consent/refusal –valid consent/refusal • Next of Kin - no application • Doctrine of Necessity • Do not Resuscitate Orders • Use of Cardiopulmonary resuscitation • Advance Care Directives

Health Care Decisions • Adult whose capacity is at issue or who lacks capacity • Informed consent/refusal - test • Informal decision making – carers (proposal) • Attorney making welfare decisions (proposal) • Personal Guardian making welfare decisions (proposal) • Court • Guardianship Board • Next of Kin - no application • Doctrine of Necessity – would still apply • Advance Care Directives (proposed statutory form)

Other Issues • Agency – Department of Social Protection • Bank Accounts • Enduring Power of Attorney • Making a Will

Capacity to Consent to Sexual Relationships • Issue of consent distinguishes between when a sexual activity becomes a criminal act or a protected right of the individual • Capacity to enter into a sexual relationship is a matter ruled by the criminal law • Touching in a sexual manner without consent may be sexual assault • Penetrative sexual relations without consent may be rape

Test for assessing capacity to consent to sexual relations • Should reflect the functional test of capacity to be taken in the proposed mental capacity legislation, that is, 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 • Consistently with this, therefore, a person lacks capacity to consent to sexual relations, if he or she is unable- • to understand the information relevant to engaging in the sexual act, including the consequences • to retain that information • to use or weigh up that information as part of the process of deciding to engage in the sexual act, or • to communicate his or her decision (whether by talking, using sign language or any other means)

Specific Offences • Strict liability offence for sexual acts committed by a person in a position of trust or authority with a person with id • A defence of reasonable mistake should apply but should not be available to a person in position of trust or authority • Should there be a specific offence of obtaining sex by threats or deception?

Capacity to Parent • Consistently with the general presumption of capacity this should include a presumption of capacity to parent • There should be a positive obligation to make an assessment of the needs of parents with disabilities under the Disability Act 2005 • Inter-agency protocol needed to provide that before application for child care order is made, an assessment of parenting skills and necessary support and training necessary to assist parents in caring for their children.

Criminal Procedure Issues • Complainants with a disability • Issues for defendants with a disability • Right to a fair trial and to prove beyond reasonable doubt

Education and Awareness • Culture and Attitudes • We all have a role to play • Positive legal framework - urgent

Thank You Q and A

Inclusion Ireland