The Assisted Decision-Making (Capacity) Act 2015 was signed into law by President Michael D Higgins on December 30th 2015.
This ground-breaking legislation will result in significant improvements in the lives of persons with intellectual disabilities as their ability to make decisions for themselves will be enshrined in law.
The legislation also demonstrates a seismic cultural shift away from a paternalistic and ‘best interests’ approach towards persons with intellectual disabilities to a right-based approach of choice, control and consent.
The new Act also removes a significant barrier to ratification of the UN Convention on the Rights of Persons with Disabilities (UNCRPD).
What is Capacity?
Capacity relates broadly to decision making and a person's ability to do so. When we are discussing capacity we will look at two different ideas, legal capacity and mental or decision-making capacity. Full explanation of Capacity can be viewed in the Inclusion Ireland Capacity Fact Sheet.
Legal Capacity is a recognition that all persons have a right to make decisions and have those decisions recognised regardless of disability.
Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) says that countries "recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life".
Mental Capacity (sometimes called Decision-Making Capacity) is more closely aligned to mental functioning and intelligence. Under this process a person who is found to lack capacity may have their rights to make decisions curtailed or substituted to another person.
Ireland has signed The UN Convention (in 2007) and finally ratified the Convention in 2018. Click to see a map of Signatories and Ratifications
Practical examples of the law in action are listed below:
(a) Medical Decisions
"Every adult patient is presumed to have the capacity to make decisions about their own health care. As their doctor, you have a duty to help your patients to make decisions for themselves by giving them information in a clear and easy-to-understand way and by making sure that they have suitable help and support. Patients have the right to have an advocate of their choice during discussions about their condition and treatment. " (pg 10)
(b) Ward of Court
Inclusion Ireland, Amnesty Ireland, The Centre for Disability Law & Policy and others have produced 'Essential Principles: Irish Legal Capacity Legislation'
Information Sheets & Publications
Conference presentations on Capacity and Supported Decision Making
Presentation at seminar on Assisted Decision-making (Capacity) Bill 2013 hosted by Inclusion Ireland, Leap and the Centre for Disability Law and Policy at NUI Galway, delivered by Dr. Eilionóir Flynn from the Centre for Disability Law and Policy - The Assisted Decision-Making (Capacity) Bill 2013: What Does It Mean?
European Foundation Centre - Consortium on Human Rights and Disability: Seminar on Legal Capacity June 2009: Presentation by Gerard Quinn, Director, Centre for Disability Law & Policy, National University of Ireland Galway
HPOD Conference, Harvard Law School, 20 February: ‘Personhood & Legal Capacity, Perspectives on the Paradigm Shift of Article 12 CRPD.’ - Gerard Quinn, NUI Galway
HPOD Conference, Harvard Law School, 20 February: Maximizing Decision-making capabilities for the exercise of legal capacity, Michael Bach - Canadian Association for Community Living
Inclusion International Conference at the University of British Columbia,Vancouver, Canada - April 2011: Gerard Quinn: ‘Rethinking Personhood: New Directions in Legal Capacity Law & Policy’
Law and Mental Health Conference - NUI Galway November 2007: Presentation from Dr Mary Keys: “Capacity - whose decision is it anyway?”+
(d) Other countries
The Independent Mental Capacity Advocate (IMCA) Service produced booklets on Making Decisions following new Capacity legislation in the UK: about your health, welfare or finances - Who decides when you can’t?
- Amnesty International: Capacity Legislation and ratification of the Disability Convention (2009)
- 'An Ideas Paper' by Gerard Quinn, NUI Galway (2009)
- Law Reform Commission Report: Vulnerable Adults and the Law (2006)
- Law Society Consulation on Vulnerable Adults and the Law: Capacity (2005)
- Law Society of Ireland: Enduring Powers of Attorney - Guidelines for Solicitors (2004)