Peter Fitzpatrick (Louth, Fine Gael) | Oireachtas source

Mental capacity refers to a person's ability to make decisions about their life in areas such as finance or health care as well as common day-to-day decisions. A person may lose mental capacity due to an injury or an illness and this may be a temporary or permanent loss. Legal capacity refers to a person's ability to act within the legal system. Unlike mental capacity, it is a legal construct. The Council of Europe Commissioner for Human Rights 2012 defines legal capacity as something "...assigned to most people of majority age enabling them to have rights and obligations, to make binding decisions and have them respected... It also protects the individual against (some) unwanted interventions." The two concepts are linked in that diminished mental capacity often results in the relevant person's losing their legal capacity, for example, their right to make decisions regarding their finances, living arrangements, etc.

The current legislation governing mental capacity in Ireland dates back to 1871 and is widely considered to be outdated and inappropriate for dealing with people whose ability to make decisions is affected, through illness, injury or another cause. Under the current law, a person who lacks decision-making capacity can be made a ward of court. As a ward of court they will not be allowed to make any decisions regarding their personal welfare or financial affairs, including the right to marry, enter into contracts or decide where to live.

In order for a person to become a ward of court, a petitioner, usually a family member, must make a formal application asking the High Court to hold an inquiry into whether the proposed ward is capable of dealing with their affairs, managing their person or property. In addition, they must swear an affidavit witnessed by a solicitor and include the opinion of two doctors in their application.

In relation to the proposed ward, the following information must be provided: information about his or her medical condition; information about his or her next-of-kin; information about his or her assets; and information about his or her income. The decision on whether to conduct an inquiry rests with the President of the High Court. If an inquiry is ordered, the proposed ward will be examined by a doctor appointed by the High Court.

This Bill proposes to replace the wards of court system with a legal framework to support people in exercising their decision-making capacity so that they can better manage their personal welfare, property and financial affairs, and to change the existing law on capacity from the current all-or-nothing status approach to a functional one, whereby decision-making capacity is assessed on an issue-and time-specific basis.

It also proposes to provide a range of supports on a continuum of intervention levels, for example, decision-making assistance, co-decision making, decision-making representation and informal support, to support people in maximising their decision-making capability; to provide, in circumstances where it is not possible for a person to exercise their capacity even with support, that another person can be appointed by the court to act as their representative with regard to specified matters; to provide that the Circuit Court will have jurisdiction in this area, giving court-backed protection to the options chosen by people; to clarify the law for carers who take on responsibility for persons who need help in making decisions; to establish an office of public guardian within the Courts Service, with supervisory powers to protect vulnerable persons; and to subsume into the Bill the provisions in the Powers of Attorney Act 1996 on enduring powers to bring them into line with the general principles and safeguards in the Bill.

It is also intended that the Bill will, on Committee Stage, incorporate provisions relating to advance care directives, which will be provided by the Department of Health. Advance care directives relate to legal documents which enable a person to specify what type of treatment they want in the event of them becoming incapacitated or nominating a health care agent to make decisions for them. Human rights groups have long called for a revision of the legislation with a shift from substitute to supported decision-making in order that individuals are enabled to make their own decisions wherever possible.

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