Mark Ward (Dublin Mid West, Sinn Fein) | Oireachtas source

There has been a shift in focus from deeming a person does not have capacity to an equal recognition of legal capacity. As per Article 12 of the UNCRPD, legal capacity is an inherent right owed to everyone. This is about moving to a recognition that everyone has legal capacity but still holds the understanding that where you may not be able to understand, will and preference decision-making supports may be needed. On Committee Stage, as Deputy Cairns said, the Minister refused to accept the amendment because he said the functional approach to mental capacity is compliant with Article 12 of the UNCRPD and general comment No. 1. This is clearly not the case as the UN committee stated in general comment No. 1, "The functional approach attempts to assess mental capacity and deny legal capacity accordingly". It is often based on whether a person can understand the nature and consequence of a decision and-or whether he or she can use or weigh the relevant information.

The approach is flawed for two key reasons. It is discriminatory and applied to people with disabilities and it presumes that to be able actively to assess the inner workings of the human mind and when the person does not pass the assessment, it then denies him or her a core human right, the right to equal recognition before the law.

In all these approaches a person with a disability and-or decision-making skills are taken as legitimate grounds for denying his or her legal capacity and lowering his or her status as a person before the law. Article 12 does not permit such denial of legal capacity but rather requires that support be provided in the exercise of legal capacity. As the UN committee has made clear the functional test of mental capacity has no place in a true system of supported decision-making.

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