Transcript Capacity, Consent and the Law Relating to

Capacity - where we are and where
we are going
Sarah Lennon
Inclusion Ireland AGM April 24th 2010
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Capacity – Why does it matter
It goes to the heart of many areas of a
person's life
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Marriage
Medical consent
Sexual relationsips
Voting
Financial Matters
Contracts
Wills
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Capacity – Why does it matter
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“A finding that a person lacks capacity
results in the restriction or removal of
fundamental human rights” – Law Reform
Commission Report; The Law & The Elderly 2003
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As with Every Human Right it should only
be restricticed as a last resort and it
should always be presumed that a person
has capacity to make decisions.
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Defining Capacity
The ability or power to do something.
In the case of Intellectual Disabililty –
decision making
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Defining Capacity
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An individual’s full legal capacity is fully
recognised if they can demonstrate to
others their will and intent.
Competency is attached to the decision
making process, and not to the person
- Michael Bach Canadian Association for Community
Living
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Defining Capacity
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“ It is not people who are competent,
it is decisions that are competent.
There is no such thing as being
existentially competent. Once you
can have decision-making capacity over
anything, the competence is related to
the decisions.”
- John Harris Professor of Bioethics at the University of
Manchester
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Current Irish Law
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1871 Lunacy Regulation (Ireland) Act
In the context of laws in the UK that
gave mentally ill people the status of
patients not prisoners
UK has had several revisions and
currently has Mental Capacity and
Mental Health Laws
Ireland still under 1871 Act for Mental
Capacity issues
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Current Irish Law – Status
Approach
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Lunacy Act – Ward of Court
Where an individual is given the
“status” of lacking capacity.
An example would be age of
consent (17 in Ireland)
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Capacity – Functional Approach
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The Law Reform Commission (LRC)
has recommended a functional
approach to assessing capacity on an
‘issue-specific’ basis
This means that a person’s capacity
to make a decision on one particular
issue (e.g. making a will) will not be
looked at in the same way as another
issue (e.g. marriage)
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In Practice: sexual relationships
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It is an offence to have or attempt to have
sexual intercourse with a person who is
“mentally impaired” unless they are
married. Section 5.1 1993 Criminal Law (Sexual Offences) Act
Mentally impaired is defined as
“Suffering from a disorder of the mind,
whether through mental handicap or
mental illness, which is of such a nature or
degree as to render a person incapable of
living an independent life or of guarding
against serious exploitation.”
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In Practice: sexual relationships
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It is worth noting that this does not
apply to married couples
Laura Kelly Case – showed
limitations of law and difficulties
posed by lack of capacity legislation
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Law Reform Commission
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“a regrettable effect of section 5 of the 1993 Act
is that outside a marriage context a sexual
relationship between two ‘mentally impaired’
persons may constitute a criminal offence
because there is no provision for consent as a
defence in respect of a relationship between
adults who were both capable of giving a real
consent to sexual intercourse.”
some degree of dependence would not
necessarily preclude an ability to consent
Law reform Commission Consultation Paper on Capacity
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In Practice:Medical Treatment
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Consent is always required
Medical council have created
guidelines – capacity must be
presumed
Disability does not necessarily mean
lack of capacity
A patient is entitled to be
accompanied by an advocate of their
own choice
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In Practice:Medical Treatment
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Capacity: Functional Approach
Assess the ability to understand and
remember information and apply it to their
own situation
If capacity is deemed lacking then the
should consult parents, guardians or carers
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In Practice:Medical Treatment
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Acting without consent from the person:
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Doctor is ultimately responsible
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Will look at best clinical procedure, past /
present wishes if known, views of people
who may know individual's preferences or
values and views of other health care
professionals
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Proposed New Law
We have obligations on us:
 - Constitutional right to privacy
 - ECHR, right to a private family life
 - UN Convention on rights of
persons with disabilities, right to
enjoy capacity on an equal basis
with others. Respect for family life.
State parties must promote these
things
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Capacity Bill 2008
Definition of capacity
 Presumption of capacity
 Personal guardians on particular
issues
 Excludes – marriage (civil
partnership), separation, dissolution
and divorce, consent to adoption,
sexual relationships, voting and
membership of a jury
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Capacity Bill 2008
Court of Care and Protection – High
Court
 Law Reform Commission suggested
a triubunal
 “Any act done or decision made
under this Act for or on behalf of a
person who lacks capacity must be
done or made in his or her best
interests”.
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Other Countries:UK
UK – Metal Capacity Act
 Court of Protection – Specialist
Court, specially trained judges
 Code of Practice. Similar planned for
development in Ireland
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http://www.publicguardian.gov.uk/mca/code-of-practice.htm
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Other Countries:Canada
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A system of supported decision making is in
place. Most advanced in British Columbia.
An individual with a disability can enter a
“representation agreement” with a support
network.
The agreement is a sign to others, including
doctors, financial institutions and service
providers, that the individual has given the
network the authority to assist him/her in
making decisions and represent him/her in
certain matters
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Thank You
Questions?
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