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Another small step towards Mental Capacity legislation

Law Reform Commission index logo, via their siteIn December 2006, the Law Reform Commission published a very valuable report on Vulnerable Adults and the Law (83-2006) (pdf). In May of this year, Carol Coulter reported in the Irish Times that the Department of Justice, Equality and Law Reform intended to act on that Report by means of a Mental Incapacity Bill which would replace the existing wardship jurisdiction with an alternative system for dealing with the affairs of vulnerable people, which will offer them assistance in making decisions and protect them from exploitation. Today’s print version of the Irish Times (but not, so far as I can see, the online version; update: though it did get a mention in the paper’s online Breaking News section) has further developments:

Ward of court system to be replaced

Carol Coulter, Legal Affairs Editor

New provisions for people who lact the capacity to make certain decisions will be made in a Mental Capacity Bill, which has been approved in principle by the Government. The Bill will provide for the replacement of teh ward of court system, including a new definition of legal capacity and the setting up of an Office of Public Guardian to protect the interests of people covered by the legislation. … The legislation … will be published next year. …

The High Court and the Circuit Court will have concurrent jurisdiction for making decisions on capacity and appointing personal guardians. … [The Minister for Justice, Equality and Law Reform, Mr Dermot Ahern] said that he intends jointly to host a seminar on his proposals with the National Disability Authority next year and to carry out widespread consultation before the Bill’s publication.

This is a welcome development, but progress is all very slow. The UK enacted similar legislation in 2005; the LRC reported in 2006 after a long consultation process (eg pdfs); and a Private Members’ Bill to the same effect was published in 2007. There is enough consensus to move much more quickly than this. So, apart from caution, why the delay?

2 Responses to “Another small step towards Mental Capacity legislation”

  1. Aidan Cooney says:

    How well equipped is our system such as disability services in Ireland to cope with this development in rights?

  2. M Farrell says:

    As a parent (and member of a committee) of my son now aged 41, who has been a Ward of Court for 19 years I have a vested interested in the proposed mental capacity legislation currently being drafted.

    I have been astonished that such an important piece of legislation should get such little headline or such little public debate (maybe that is yet to come) but it may be too late. The country seems taken up with the recession – and the resultant job losses, cuts in services, dole queues, NAMA, Lisbon Treaty and the current government’s performance (or lack of it, as the case may be). I feel that this important piece of legislation requires far more robust debate and public airing. The very people who will immediately be impacted are those who are Wards of Court in the current system. It is not at all clear how this ‘transfer’ from one type of system to another for these wards will be affected. The Law Reform Commission has recommended this change in legislation which is long overdue, given that the current Lunacy Regulations of 1871 govern the operation of the wards office. However, a recent document I saw which came from government showed the costings for a new Guardianship office versus the current WoC office and the figures and staffing are similar. The new offfice should start from scratch. We need to be clear that the legislation is complaint with the UN Convention on the Rights of People with Disabilities and we need to be clear who will determine capacity and how. It is currently a one size fits all scenario with those given full responsibility for all the day to day care of the ward, being given no say in any decision making that affects him. And these are amongst the most vulnerable in the country.

    I despair of this country doing anything right and this government certainly cannot do anything right. I have no faith in this at all. How can we get public debate opened up about this and make people aware of how much this legislation is going to impact on – not only current wards, but those who will become mentally incapacitated from herein onwards. This can happen very quickly through development of a neurological disorder, mental illness, brain damage and so on.

    M Farrell

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

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