IT IS important that the Mental Capacity Bill does not mean the old “wards of court” system under a new name, Robin Webster of Age Action Ireland told the conference.
“If it is it will be a disaster. There has to be a clean break with the past, a new scheme, new procedures, a new way of thinking.”
He said legislation to protect vulnerable adults was very important, with the emphasis on their rights critical. We had an ageing population, an increase in dementia and a growing awareness of the extent of elder abuse.
He said it was essential that reviews took place after 12 months, and not after 36 months as was proposed. This was the average time people spent in residential care.
Patricia Rickard-Clarke of the Law Reform Commission, which recently published a report including a draft Mental Capacity Bill, said it was important to reach out to human rights law in the Bill, basing it on human dignity and constitutional rights. It was difficult to achieve both the autonomy and protection of a person.
She warned that the “best interests” principle could be very subjective on the part of the person making the decision on someone else’s behalf. This should be assured objectively as well.
She stressed that informal decision-making, which is provided for in the Scheme of the Bill, should be backed up by clear guidelines.
She said the approach of the Law Reform Commission to decision-making was an incremental one, where a person was capable of making certain decisions but not others.
“The boundaries have to be very clear. The more serious the decision, the more formal the decision-making has to be.”
She said the provisions allowing for informal decision-making and, in cases of an urgent decision, an application to court needed further consideration.
The jurisdiction of the court making the decision for the person should not be decided on the basis of the amount of money at stake, but on the seriousness of the decision.
Deirdre Carroll of Inclusion Ireland said her organisation welcomed the proposed Bill, but was concerned about its implicit paternalism. From the outset everything should be done to establish the need for assisted decision-making, and to provide support to a person in making and communicating a decision.
She drew attention to the system in Canada, where not only cognitive ability but the input of family and other social supports were taken into account.