Inclusion Ireland welcomes recognition from Government of the urgent necessity for enactment of the Assisted Decision-Making (Capacity) Bill 2013


Wednesday, 21st October 2015

Inclusion Ireland welcomes recognition from Government of the urgent necessity for enactment of the Assisted Decision-Making (Capacity) Bill 2013

Further progress made on passing of the Bill following consideration of further amendments at Report & Final Stages

Long-awaited repeal of the Lunacy Regulation (Ireland) Act 1871 another step closer

Inclusion Ireland has welcomed recognition from the Government of the urgent necessity for enactment of the Assisted Decision-Making (Capacity) Bill 2013 following consideration of further amendments at the Report & Final Stages in Dáil Éireann today.

Today’s proceedings bring us closer to the enactment of the Capacity Bill and the long-awaited repeal of the Lunacy Regulation (Ireland) Act 1871.

The Bill – when enacted – will result in the end of the Ward of Court system and the discharge of people currently within the system. This will result in significant improvements in these people’s lives.

Minister of State at the Department of Health Kathleen Lynch TD presented the Bill in its latest guise with another significant tranche of amendments and said that “we are now at the point where we need to do the business” and hoped that the legislation would be “in place before Christmas”.

The Assisted Decision-Making (Capacity) Bill 2013 will reach the Seanad stage on Tuesday, 10th November 2015.

The most significant developments from today’s process were:

  • All reference and provisions that supports so-called ‘informal’ decision-making are removed. The amended Bill had removed the language of ‘informal decision-making’ but allowed for acts in good faith. These provisions are now completely removed. A code of practice overseeing this process will now not be needed.
  • A separate section for the ‘repeal of the Lunacy Regulation (Ireland) Act 1871’ is proposed owing to its significance.
  • Individuals should be presumed to be competent decision-makers and where decision-making capacity is or may shortly be in question, the person can avail of a decision-making assistance agreement, co-decision-making agreement or another person may apply to be a decision-making representative.
  • Co-decision-making agreement will be reviewed by the Director of the Decision Support Service every three years (previously 12 months) with the exception of the first review which takes places between 9-15 months.
  • A limit of one change per annum to a co-decision-making agreement will now be permitted. Other safeguards as to the witnessing of co-decision making agreements were also put forward.
  • No person can give consent for the non-therapeutic sterilisation on a person lacking capacity. Previously the High Court could sanction this. 
  • People who are ready to leave wardship can apply to court to be discharged immediately on commencement and all persons will be reviewed within three years. 
  • Persons detained in approved centres under wardship will be reviewed ‘soon after the Act’s commencements’.
  • Further safeguards relating to chemical restraint for non-therapeutic reasons are envisaged for Seanad stages.

Inclusion Ireland Training and Development Officer Sarah Lennon said:

“Inclusion Ireland welcomes the recognition from the Government of the urgent necessity for enactment with the Seanad stage expected imminently. 

“The repeal of the Lunacy Regulation (Ireland) Act will begin the process of discharge for the two thousand adults who are currently under the Ward of Court system. There were 322 people made Ward of Court in 2014 alone, an increase on the previous year’s totals.

“In particular, Inclusion Ireland welcomes the removal of ‘informal’ decision-making or ‘acts in good faith’. The existence of these provisions allowed an undermining of the support structures envisaged by the legislation.

“Inclusion Ireland now calls for an expedient enactment and commencement of all aspects of the legislation so that people with intellectual disabilities – and others whose decision-making capacity is called into question – can avail of the support that they need to articulate their decision-making on an individual basis.”    

Inclusion Ireland CEO Paddy Connolly said:

“The Victorian-era Lunacy Regulation (Ireland) Act 1871 refers to persons with intellectual disabilities as ‘idiot’, ‘lunatic’ and of ‘unsound mind’. Such legislation has no place in modern Ireland.

“There are currently over two and a half thousand people in Ireland with an intellectual disability, mental illness or brain injury who remain Wards of Court under this archaic legal regime.

“The fact that this legislation has not been repealed is one reason given by the State for its failure to ratify the UN Convention on the Rights of Persons with Disabilities (UNCRPD) a full eight years after it was signed.

“Successive Governments have failed to replace this law with modern human rights-compliant mental capacity legislation and we are now calling on the Government for the swift enactment and commencement of the Assisted Decision-Making (Capacity) Bill without further delay.”

Notes to the editor:

Inclusion Ireland is the national association for people with an intellectual disability. We provide a central forum for our members to identify priorities and formulate nationally agreed policies to present to government, statutory bodies, other relevant groups as well as the general public. Inclusion Ireland campaigns for changes in services and legislation that will improve the quality of life and participation of people with an intellectual disability in Irish society.

Inclusion Ireland also provide an information and advice service to people with an intellectual disability, their families and also to services that support people with an intellectual disability as well as students and others doing research in the sector etc.