Minister Lynch announces publication of the Assisted Decision-Making (Capacity) Bill 2013

Statement by Kathleen Lynch TD

Minister of State, Department of Health and Department of Justice, Equality & Defence with responsibility for Disability,Older People, Equality & Mental Health

Minister of State with responsibility for Disability, Older People, Equality & Mental Health, Kathleen Lynch TD, today announced the publication of the Assisted Decision-Making (Capacity) Bill 2013. The Bill was approved by the Government at its meeting on 16^th July 2013.
The legislation represents a comprehensive reform of the law on mental capacity, replacing the Wards of Court system with a new legal framework. For the first time, Irish law will provide for supported decision-making.

In welcoming the legislation, Minister Lynch said “This Bill will provide a continuum of supports to those who need assistance in making decisions that affect their lives. The Bill sets out a menu of options to respond to people's differing needs. Some people may need a small amount of help in obtaining information and in getting to grips with systems. The decision-making assistant option will suit them. The co-decision-making option may be most suitable for someone who needs somebody to make a decision jointly with them. That person will be able to enter voluntarily into a co-decision-making agreement with a trusted friend or relative.

“Many people will be able to use informal arrangements rather than formal agreements and the Bill will provide protection in such cases. In a minority of cases, there is provision for court-ordered decision-making representation. This will be an option of last resort but the reality is that our law must still provide for it. In such cases, the representative will be required to faithfully act as the individual's voice. In all cases, the person's will and preferences will have to be centre stage."

The Bill will:

- 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

- 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

- provide a range of supports, on a continuum of intervention levels (for instance, decision-making assistance, co-decision-making, decision-making representation, informal support), to support people in maximising their decision-making capability

- 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

- provide that the Circuit Court will have jurisdiction on this area giving court-backed protection to the options chosen by people

- clarify the law for carers who take on responsibility for persons who need help in making decisions

- establish an Office of Public Guardian within the Courts Service, with supervisory powers to protect vulnerable persons

- subsume into the Bill the provisions in the Powers of Attorney Act 1996 on enduring powers in order to bring them into line with the general principles and safeguards in the Bill.

In addition, the Bill will, at Committee Stage, incorporate provisions relating to Advance Care Directives, which will be provided by the Department of Health. These were drafted on foot of a Government Decision on 12 March 2013 with the intention of including them in the Assisted Decision-Making (Capacity) Bill at Committee Stage.

Underpinning these provisions, the Bill sets out the following guiding principles, which will apply to each and every intervention under the proposed legislation:
- there is a presumption of decision-making capacity.
- no intervention will take place unless it is necessary having regard to the needs and individual circumstances of the person.
- a person will be treated as unable to make a decision only where all practicable steps to help that person make a decision have been taken without success.
- any act done or decision made under the Bill must be done or made in a way which is the least restrictive of a person’s rights and freedoms.
- any act done or decision made under the Bill in support or on behalf of a person with impaired capacity must give effect to his or her will and preferences.


The Assisted Decision-Making (Capacity) Bill 2013 is here.

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