EMPOWERING CAPACITY
Functional approach and supported
decision making
Máirín McCartney 19th 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
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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 6th 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
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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
Recent developments
• 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
2006 UN Convention on the Rights of Persons
with Disabilities (CRPD) Article 3 - Principles
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Respect for inherent dignity, individual autonomy
including the freedom to make one’s own choices and
independence of persons
Non-discrimination
Full and effective participation and inclusion in Society
Respect for difference and acceptance of persons with
disabilities as part of human diversity and humanity
Equality of opportunity
Accessibility
Equality between men and women
Respect for the evolving capacities of children with
disabilities and respect for the right of children with
disabilities to preserve their identities.
CRPD Article 12
Equal recognition before the Law (1)
• 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 (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)
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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”.