CAPACITY: Functional approach and supported decision making

by Máirín McCartney

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The question of capacity arises on a daily basis for individuals with intellectual disability, their parents, service providers and medical personnel. It is an issue that is also relevant for people with acquired brain injury or people with severe mental health issues or dementia.

Capacity is a matter of equality and human rights. If we are to have a truly inclusive society, we must recognise that every individual has to be provided with the necessary supports to enable them to exercise their right to make decisions on their own behalf. Even though there is a presumption that everyone has capacity to make their own decisions, the question of whether or not an individual has capacity to make a particular decision at a particular time frequently arises. For doctors and lawyers, assessing capacity is an extremely difficult task. For parents, families and friends recognising the right to self-determination and providing the necessary supports to make decisions is a challenge. How we assess capacity and what supports we provide for decision making are therefore extremely important questions in considering the current legal position and the proposed changes to capacity legislation.

Assessing capacity

Legal capacity is the ability to enter into a transaction or exercise rights. In order to exercise full human rights an individual needs to be able to make decisions. Whether or not someone can enter into a contract, consent to sexual relationships or marriage, make healthcare decisions or make decisions about where they work or live all require a consideration of capacity. The Law Reform Commission consultation paper Vulnerable adults and the law recognised three approaches to capacity: the status approach, the outcome approach and the functional approach. The status approach involves an assessment of the person’s capacity based on the fact of disability. The outcome approach makes a decision on the individual’s capacity based on an assessment of the consequences of their decision making choices. The functional approach requires that the particular decision at the particular time is considered. ‘Capacity is envisaged as time-specific as well as issue specific.’ This last approach recognises that different levels of capacity are required for different decisions. In the UK, a court decided that an elderly man who got married at 11 o’clock in the morning and made a will at 3 o’clock in the afternoon on the same day had capacity to get married, but did not have capacity to make a will.

European perspective

In September 2010, ADEL (Advocacies for Frail Incompetent Elderly in Europe) presented the results of a comparative analysis of national systems and concluded that there were three models used in Europe. The traditional Civil Law model is based on the objective best interest principle and the individual loses all competence. This would be similar to the current wardship proceedings in Ireland. The second model is the welfare model, which is paternalistic and based on a subjective best interest principle. The third model they described as the assistance model which involves supported, rather than substituted, decision making and means that an individual exercises all capabilities. Denmark operates such a system and the system is administered through a regional administration rather than a court.

Modern capacity legislation overdue

The question of whether or not someone has capacity to make a particular decision is a legal question rather than a medical question. However, a medical assessment may be required in order to assist in deciding whether or not an individual has capacity. There is a presumption of capacity and the individual whose capacity is in question should participate in the process of determining whether or not the person has capacity to make a particular decision. If it is determined that someone does not have capacity to make particular decisions, particularly financial decisions, then at present in Ireland, the only option is to make the individual a ward of court under the Lunacy Regulations (Ireland) Act 1871. Once a person is made a ward of court, they lose all capacity and the High Court makes all decisions on their behalf. Many people take the view that the current wardship procedure is in breach of human rights.

Modern capacity legislation is long overdue. The Law Reform Commission have published several consultation papers and a report during the past eight years. In 2008 the then Minister for Justice, Equality and Law Reform Dermot Ahern published a draft Scheme of Mental Capacity Bill. Following the publication of the draft scheme there was consultation and the proposed bill is still under active consideration by the Department. The Irish Human Rights Commission, in its observations on the Scheme of the Mental Capacity Bill 2008, stated ‘it is a well established principle of international human rights law that the domestic framework governing legal capacity must provide for appropriate and effective safeguards.’ Article 12(4) of the UN Convention on the Rights of Persons with Disabilities 2006 provides that all measures relating to the exercise of legal capacity should respect the rights, will and preferences of the person and be free of conflict of interest and undue influence and be proportional and tailored to the person’s circumstances. The measures should only apply for the shortest possible time and be reviewed on a regular basis. Ireland has signed this Convention, but in order to ratify it Ireland needs to pass new legislation enabling people with disabilities to enjoy legal capacity on an equal basis with others in all aspects of life.

The Government Programme for National Recovery 2011-2016 included a promise to reform the law on mental capacity. We anxiously await the publication of the Bill.

Proposed changes

The proposed Bill will replace current wardship proceedings with guardianship proceedings. Applications will still have to be made in the Circuit Court or High Court (rather than to a Guardianship Board as recommended by the Law Reform Commission (LRC)). The LRC favoured a board with a Judge as Chairperson and two other members with appropriate experience in order to provide a multidisciplinary approach. Unfortunately the proposed Scheme provides that applications will be made to the Circuit or High Court sitting as the Court of Care & Protection.
There are guiding principles set out in Head 1 of the Scheme, which include the following:
— presumption of capacity
— no intervention unless necessary
— all practicable steps to help make decisions must be taken
— not to be treated as unable to make decision merely because it may be an unwise decision
— least restrictive act
— respect must be given to the dignity, bodily integrity, privacy and autonomy of the individual
— past and present wishes must to be taken into account
— views of other persons with an interest are to be taken into account
— any acts done or decisions made must be in the best interests of the individual.

The proposed Bill also defines capacity as meaning 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. An individual is taken to lack capacity if they are unable to understand or retain or weigh the information or to communicate the decision. The fact that the information can only be retained for a short time does not prevent the person from having capacity.

The Scheme includes a provision for the appointment of a personal guardian to make decisions on the person’s behalf and it also provides for the appointment of a public guardian.

The public guardian has an obligation to register all court orders appointing personal guardians and is the supervisor of all personal guardians. The public guardian also has to prepare codes of practice on assessing capacity, guidelines for personal guardians and medical treatment. The public guardian also has an obligation to provide information and advice to personal guardians. The Scheme also includes a provision that the court has to review its decisions at least every three years.

Amendments to our legal capacity legislation are long overdue, but there are concerns with the proposed Scheme. Should the decisions be made by the Court or a Legal Capacity Board? Should there be more emphasis on supported decision making, rather than substituted decision making? Head 20 of the draft Scheme appears to exclude questions of marriage, adoption, sexual relations, voting and other matters from the Act. It is not appropriate to distinguish some areas; the proposed Bill should cover decision making in all contexts.

Modern capacity legislation must recognise the presumption of capacity and provide for supported decision making and include the participation of the individual in the decision making process. The introduction of the Bill is eagerly anticipated.

Máirín McCartney is a solicitor in Donegal Town and has a particular interest in disability. She is a Board Member of Inclusion Ireland and of County Donegal Parents & Friends of People with Intellectual Disability Limited.

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