Inclusion Ireland welcomes historical passing of the Assisted Decision-Making (Capacity) Bill 2013


Thursday, 17th December 2015

Inclusion Ireland welcomes historical passing of the Assisted Decision-Making (Capacity) Bill 2013

Repeal of the Lunacy Act 1871 and Marriage of Lunatics Act 1811 has now been achieved

Concerns over six-month timeframe to commence all aspects of the new legislation

Inclusion Ireland has welcomed the historical passing of the Assisted Decision-Making (Capacity) Bill 2013 in Dáil Éireann today.

This ground-breaking piece of legislation brings about the long-awaited repeal of the Victorian-era Lunacy Regulation (Ireland) Act 1871 and the Marriage of Lunatics Act 1811.

The passing of the Capacity Bill 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 passing of this Bill removes a significant barrier to ratification of the UN Convention on the Rights of Persons with Disabilities (UNCRPD).

It 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.

However, Inclusion Ireland has concerns over the six-month timeframe to commence all aspects of the legislation. This means that there will be a delay for persons with intellectual disabilities availing of the supports that they need to articulate their decision-making.    

Inclusion Ireland Training & Development Officer Sarah Lennon said:

“The passing of the Capacity legislation is a truly significant day for persons with disabilities across Ireland. It will bring about the repealing of the Lunacy Act, Marriage of Lunatics Act and will start the discharge of thousands of people from the archaic Wards of Court system. 

“The Victorian-era Lunacy Regulation (Ireland) Act 1871 refers to persons with intellectual disabilities as ‘idiot’, ‘lunatic’ and of ‘unsound mind’. Ireland has finally replaced this outdated law with modern human rights-compliant mental capacity legislation.

“We are grateful for the work that various TDs and Senators have put into this key piece of legislation and also the work that Minister Kathleen Lynch has put into the whole process over the last four years. We are also grateful for her willingness to take on board the concerns of organisations like Inclusion Ireland who are in daily contact with individuals and families affected by this issue.”

Inclusion Ireland Chairperson Tom Healy said:

“This modern legislation is a huge step forward and it means that persons with intellectual disabilities will finally have their ability to make decisions for themselves enshrined in law.

“The long delay in passing the Capacity legislation was one reason repeatedly given by the State for its failure to ratify the UN Convention on the Rights of Persons with Disabilities. The Government should now ensure that the UN Convention is finally ratified – albeit eight years after Ireland signed up to it in March 2007.

“Inclusion Ireland has been lobbying, campaigning and advocating for the introduction of the Capacity Bill for well over three decades and we are delighted to see this key piece of legislation becoming reality.”

Inclusion Ireland Vice-Chairperson Máirín McCartney said:

“The Capacity Bill will not just have an impact on the lives of persons with intellectual disabilities, but also those with mental health issues and the elderly – it will affect everyone.

“Credit must be given to Minister Kathleen Lynch and the numerous TDs and Senators who all supported the Capacity Bill through the legislative process. The Bill was well consulted on and each organisation was given the opportunity to have an input.

“However, Inclusion Ireland is disappointed that the legislation will take six months to commence. A delay is understandable and we appreciate that the creation of a new agency within the Mental Health Commission will take time in terms of recruitment and branding. However, we urge the immediate recruitment of the Director of the Decision Support Service (DSS) to begin the much-needed public awareness work.”


Notes to the editor:

(a) Passing of the Capacity Bill – what this means for persons with intellectual disabilities: 

● Lunacy Act 1871
The Lunacy Act and Marriage of Lunatics Act are repealed upon commencement of the Capacity Act. This will mean an end to the Victoria-era Ward of Court system for over 18s. The Ward of Court system stripped people of all of their decision-making rights in order to manage their personal and, most usually, their financial affairs.


● Marriage of Lunatics Act 1811
Marriage of Lunatics Act is repealed. This means genuine Marriage equality for all people regardless of status. At present, people who are Wards of Court cannot marry or divorce. Persons with disabilities can marry as long as they have the capacity to do so.


● Wards of Court Funds
Inclusion Ireland had called for a retrospective review of Wards of Court funds as part of this process. The Public Accounts Committee (PAC) reported that many Wards of Court experienced losses to their funds during the financial downturn despite not being involved in investment decisions. The legislation will not include any review. 


● Decision Support Service (DSS)
The DSS will move to the Mental Health Commission and we cautiously welcome that. The Capacity Bill is disability-neutral and should not be associated solely with mental health. We recognise that the Minister has assured that the DSS will have its own identity and branding and we welcome that. Inclusion Ireland had campaigned for the DSS to be outside the Courts Service and is welcoming of that.


● Ratify UN Convention on the Rights of Persons with Disabilities
The Government has published a Roadmap for Ratification of the UNCRPD and the Assisted Decision-Making (Capacity) Bill was by far the largest impediment to ratification. With the enactment imminent, we call on the Government to ratify the UNCRPD without reservation as soon as possible.


(b) Inclusion Ireland 

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.

(c) Capacity Legislation

Capacity Legislation 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. 

Legal Capacity is recognition that all persons have a right to make decisions and have those decisions recognised regardless of disability.

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. 

More information on Capacity follow this link