Transcript

BRENDAN KELLY

In the Republic of Ireland, the mental capacity law that's presently in force dates from 1871. And in 2015, we passed a new piece of legislation, but it has not yet been commenced. The proprietary work is underway.

So maybe the most important feature of Irish capacity legislation in the Republic of Ireland is how old it is, and how unfit for purpose it is and has been. For nearly a century, it's been outdated.

But progress is being made. We're at a point of very great transition, when a new piece of legislation, the Assisted Decision-Making (Capacity) Act has been passed by Parliament, signed by the president. But it's not been activated, because proprietary work is underway. So there is great change in the air. But the challenges with the new legislation will be very great.

The greatest challenge in mental capacity legislation in the Republic of Ireland is implementing the 2015 act, the new legislation. This introduces three levels of decision-making support.

So up to this point, somebody with impaired mental capacity, the only option really was that they were declared a ward of court. And the court, the high court, got responsibility for all decision-making in relation to the person, responsibility that it quickly delegated, usually to named persons. But it was an all-or-nothing approach, and it still is today.

The new legislation will abolish that all-or-nothing system and introduce three levels of decision-making support for each decision. So if, for example, someone cannot decide about health care, they could appoint the lowest of the three levels of support, called a decision-making assistant.

They could appoint a co-decision-maker that is a joint decision maker. That's the middle of the three levels of support. Or if their capacity is seriously impaired, they can go to court, or a court hearing can occur, and a court can appoint a co-decision-maker. That's the middle of the three levels.

Or the court can appoint a decision-making representative, someone to make decisions on behalf of a person. So the biggest challenge will be moving from the current all-or-nothing approach to this new, graded level of capacity structure, so that you have three new levels of support in making decisions.

The second biggest challenge will be the cultural shift from the old system, where the high court took over all powers of decision-making, to the new one, which is based on the person's will and preference. So the three levels of decision-making support, people acting in those roles, they can't do what they think is the right thing to do. They're under a legal obligation to assist the person doing what the person wants to do themselves. So the cultural shift is the second, and possibly the greater challenge.

The Assisted Decision-Making (Capacity) Act of 2015, which will be implemented in the coming years, is part of a process that will hopefully result in the Irish government ratifying the Convention on the Rights of Persons with Disabilities, the UN CRPD as it's called, which Ireland has signed, but it has not yet ratified. So it is hoped that this will allow that to happen.

And if the new legislation is activated in due course, in the coming couple of years, and the government goes ahead and signs the CRPD, that will produce much broader change in terms of respect for mental capacity. There will be knock-on effects to other areas of law. For example, in relation to criminal law, there might be consequences, and also law relating to property and other matters.

So I suppose that the biggest change we'll see will be a sort of a domino effect. If the progress on the 2015 act allows signing of the Convention of the Right to Persons with Disabilities, that would bring a host of new responsibilities to the government-- in summary, to make reasonable accommodation for persons with impaired capacity and persons with disabilities. Now, not everyone with disability has impaired capacity, but there is some overlap there. So the next 10 years will see a lot of change in that area, following on from the 2015 act.