Fintan Warfield (Sinn Fein) | Oireachtas source

Speaking on this section and my earlier amendment No. 4, with the leave of the Chair, this amendment concerned the amending of section 3 of the Act and the recognition of legal capacity. The Assisted Decision-Making (Capacity) Act was drafted to enable Ireland to ratify the Convention on the Rights of Persons with Disabilities, CRPD. However, the Act remains non-compliant with the CRPD. This is because the Act contains a functional test of mental capacity as a means of determining whether a relevant person can exercise his or her legal capacity. This approach results in a form of what is called "substitute decision-making" rather than supported decision-making. The UN Committee on the Rights of Persons with Disabilities, in general comment No. 1 states: "The functional approach attempts to assess mental capacity and deny legal capacity accordingly". It goes on to say: "Article 12 does not permit such discriminatory denial of legal capacity, but, rather, requires that support be provided in the exercise of legal capacity".

Despite this clarification, Ireland introduced a reservation to Article 12 upon ratification, signalling its intention to maintain systems of substitute decision-making. When Ireland enters into dialogue with the UN committee in Geneva, like other countries before it, it will be asked to consider removing this reservation and to commit to the full implementation of supported decision-making as required by the CRPD.

Ireland was among the first countries to reform its capacity law in light of the CRPD and could claim to be a world leader in this domain again if it removes the functional test of mental capacity and abolishes all forms of substitute decision-making, as countries such as Costa Rica, Peru and Colombia have done in their subsequent reforms. While these are relatively recent, they have been developed as a result of decades of activism by disabled people’s organisations and the grassroots in each country, and these reforms have been subjected to intensive parliamentary scrutiny and have had broad support from the Judiciary, law commissions and academic researchers.

In a report on pre-legislative scrutiny, the Joint Committee on Children, Equality, Disability, Integration and Youth recommended that the functional test of capacity should be removed and replaced with an obligation to acknowledge, interpret and act upon the relevant person’s will and preferences, in line with the UN Convention on the Rights of Persons with Disabilities. These were made in pre-legislative scrutiny recommendations Nos. 11 and 15. The wording of this amendment is drawn primarily from a draft statutory framework for legal capacity law reform in Canada and developed by two leading scholars on legal capacity worldwide, namely, Michael Bach and Lana Kerzner. If accepted, it would require the tabling of further amendments on Report Stage to reframe the eligibility criteria for the different types of support and intervention under the 2015 Act.

A similar amendment was offered on Committee Stage debate during the Assisted Decision-Making (Capacity) Bill 2013, although at the time no countries had reformed their laws in light of Article 12 of the CRPD. However, now there are three examples of countries which have developed legislation to replace adult guardianship that is fully compatible with Article 12 of the convention as interpreted by the UN Committee on the Rights of Persons with Disabilities.