27th March 2010

RIGHT OF PEOPLE WITH AN INTELLECTUAL DISABILITY TO HAVE RELATIONSHIPS RESPECTED UNDER LAW IN DOUBT – INCLUSION IRELAND

Inclusion Ireland calls for new capacity legislation as current law risks criminalising consensual relationships between two people with intellectual disabilities. While it is vitally important to ensure people with an intellectual disability are safeguarded under law against abuse and exploitation, it is imperative that people’s right to have relationships is legally respected. 

The Criminal Law (Sexual Offences) Act 1993 makes it an offence to have or attempt to have sexual intercourse with a ‘mentally impaired person’ unless they are married. Mentally impaired is described as “a person suffering from a disorder of the mind, whether through mental disability or mental illness, which is of such a nature or degree as to render a person incapable of living an independent life or of guarding themselves against serious exploitation”. The Law Reform Commission says this could be a potential breach of Article 8 of the European Convention on Human Rights in relation to respect for private life[1] . 

New law should ensure there are guidelines and definitions for ‘testing’ capacity to make decisions. Current law in the area of capacity is the Lunacy Act of 1871. Inclusion Ireland believes the presumption of capacity must always be in place. The issue of testing capacity has implications across all areas of a person life, including capacity to marry. A couple cannot currently get married if either person is deemed to not have the mental capacity to understand the nature of marriage. However, we need new legislation to set out a definition of what determines capacity and how it is judged. Until then the right of people with an intellectual disability to have consenting relationships is in doubt under law. 

Modern capacity legislation is needed before Ireland can ratify the UN Convention on the Rights of Persons with Disabilities. Ireland was among the first countries to sign the Convention on the Rights of Persons with Disabilities on March 30th 2007. Then Justice Minister Michael McDowell said it would be ratified “as soon as possible”. Three years later we are still waiting.  Article 23 of the UN Convention says: (1) States Parties shall take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others...

ENDS

EVENT: Inclusion Ireland, Amnesty International Ireland and the School of Nursing and Midwifery at Trinity College Dublin are calling on the Government to urgently ratify the UN Convention on the Rights of Persons with Disabilities, and will hold a joint press conference on this issue on Tuesday 30th March 2010 at 1.30pm in the School of Nursing and Midwifery, D’Olier St., Dublin 2.       

GO TO WEBPAGE OF CAMPAIGN FOR MODERN CAPACITY LEGISLATION & RATIFICATION OF THE UN CONVENTION

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