THE LAW AND PEOPLE WITH AN INTELLECTUAL DISABILITY: An Inclusion Ireland Conference hosted by the Law Society of Ireland, 19 October 2011

Mitchel Fleming, St. Paul’s Service, Beaumont

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John Costello, President of the Law Society, welcomed the conference delegates to the resplendent surroundings of the Society’s premises at Blackhall Place and congratulated Inclusion Ireland on their 50th anniversary. Freda Finlay, Chairperson of Inclusion Ireland, outlined the background to the conference and stressed the need to update Irish law in relation to people with an intellectual disability. Our current laws, Freda said, treat adults with an intellectual disability as second class citizens, consider that they are not capable of giving consent on matters that concern them and leave them vulnerable.

Professor Gerard Quinn, Director of the Centre for Disability Law and Policy at NUI Galway, spoke about the UN Convention on the Rights of Persons with Disabilities, with particular reference to Article 12. This Article, which is regarded by many as the lynchpin of the new Convention, guarantees ‘equal recognition under the law’ to people with an intellectual disability. It emphasises the need to respect the person’s will and preferences and moves away from treating people with disabilities as ‘objects’ to be managed or cared for by others, to being ‘subjects’ capable of determining their own destinies and deserving of equal respect. This, according to Professor Quinn, is paramount to a revolution in how people with an intellectual disability are viewed in law.

Máirín McCartney, Solicitor and Inclusion Ireland Board Member, gave a presentation on Reform of Capacity Legislation: Inclusion Ireland’s View on the Way Forward. Legal capacity is the ability of a person to exercise their rights or enter into a transaction. Máirín said that 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. At present, in Ireland if a person with an intellectual disability is deemed not capable of making a particular decision, then the only option is to make the person a ward of court under the Lunacy Regulation (Ireland) Act 1871. Once a person is made a ward of court they lose all capacity and the court makes decisions on their behalf. This wardship procedure is considered by many to be in breach of a person’s human rights. The Government Programme for National Recovery 2011.2016 included a promise to reform the law on mental capacity. Máirín believes that any new capacity legislation must recognise the presumption of capacity, provide for supported decision making and include the participation of the individual in the decision making process.

Patricia Rickard-Clarke, Law Reform Commission, spoke about the LRC Consultative Paper on Sexual Offences: Capacity to Consent. At present the Criminal Law (Sexual Offences) Act Section 5 criminalises certain consensual sexual acts if a person is deemed to be ‘mentally impaired’ (i.e. cannot live an independent life) outside of a marriage context. The LRC has recommended that Section 5 of the Act should be amended ‘in order to ensure that relationships between adults with limited decision-making ability would be lawful where there is real informed consent’. Patricia said that capacity to give consent should be based on a person’s ability: to understand the information relevant to engaging in the sexual act, including the consequences; to retain that information; to use or weigh up that information and to communicate his or her decision.

Barrister Teresa Blake gave a presentation on Proceedings under the Child Care Act 1991–Parents with Impaired Capacity. Parents with intellectual disabilities have the same rights and duties as any other parents to enjoy a family life, and to rear and educate their children. Children, on the other hand, have a right to be protected and for their interests to be paramount. Where a child protection concern is raised, a determination as to how a parent’s intellectual disability may impact on their parenting ability and the child’s development has to be made. International research findings show that there is usually a lack of appropriate support for parents with an intellectual disability and that expert opinion on the perceptions of the parents’ incompetence generally prevails. Teresa concluded that there is an immediate need for clarity in respect of legal capacity and for the provision of a properly trained advocacy service to support parents with intellectual disabilities.

Beverly Smith, self-advocate and member of the Cork Advocacy Committee, spoke about Wills and People with an Intellectual Disability: A self-Advocate’s perspective. Many parents of a person with an intellectual disability are especially concerned about making proper provision for the future. It is important for parents to make a will as soon as possible, as dying without a will can create complications with surviving spouses and children. (Useful information on wills can be obtained from Inclusion Ireland, the Citizens Information Board and the Revenue Commissioners.)

In conclusion, Inclusion Ireland and its CEO Deirdre Carroll are to be congratulated on organising an excellent, timely and well attended conference on legal capacity of people with intellectual disabilities. It is clear that Ireland should urgently move to ratify the UN Convention on the Rights of Persons with Disabilities, by repealing many of our now dated laws, to ensure that all people are supported to take their place as full and equal citizens in society.

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