PILA is delighted to welcome this guest piece by Katie Mannion, Human Rights Officer on the Mental Health team at Amnesty International Ireland. She is a solicitor and a graduate of the University of Essex (LLM) and NUI Galway (BCL). AI's goal is that everyone enjoys the highest attainable standard of mental health. AI is currently campaigning to ensure that capacity legislation is enacted that is in line with the Convention on the Rights of Persons with Disabilities (CRPD) and that the Mental Health Act 2001 is updated in line with the CRPD. AI is also running a national campaign to challenge prejudice and discrimination.
New mental capacity legislation is shortly due for publication and Amnesty International Ireland (AI) is keen to ensure it is in line with the latest international human rights standards.
The introduction of capacity legislation is proposed to bring Irish law in line with the Convention on the Rights of Persons with Disabilities (CRPD), and to enable ratification of the Convention, which the Irish Government signed in spring 2007.
AI welcomes the 2011 Programme for Government commitment to review the Mental Health Act 2001 and to introduce a Capacity Bill that is in line with the CRPD. We are, however, concerned the current Scheme of the Capacity Bill does not adequately adopt the changes required by Article 12 of the CRPD.
The draft heads of the Mental Capacity Bill from 2008 are based primarily on the recommendations of the Law Reform Commission's Consultation Papers and final Report. The Law Reform Commission's important work on legal capacity concluded just as the CRPD was finalised and since then the understanding of legal capacity has developed in international law. While the Bill has positive aspects it needs to be reconfigured to comply with Article 12 on the right to legal capacity. Article 12 obliges States to "take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity". Capacity law will affect persons with a range of issues and in a range of circumstances. AI's focus in relation to this legislation is on persons with mental health problems but Irish law must fully protect the rights of all people with disabilities.
Specifically, AI is concerned the 2008 Scheme does not sufficiently provide for a system of supports that would enable people to make decisions and exercise their legal capacity. The Scheme gives undue weight to substitute decision-making and as currently worded will mean that it is unlikely Ireland would be in compliance with Article 12. AI strongly recommends that legislation introduced adequately provides for informal and formal supports that would support people and respect the autonomy and self-determination of the individual. AI recommends making provision for independent capacity advocacy support persons to assist individuals to make decisions, as well as legal recognition of informal, cost effective supports such as carers, peer supports and families.
The approach in the Scheme also fails to undertake the change in thinking required to move away from viewing people with disabilities as objects to be cared for to accepting people as subjects benefiting from the rule of law. Article 12 demands that we move from a model of 'best interests' to one that focuses on the potential of individuals and ensure they "enjoy legal capacity on an equal basis with others in all aspects of life". The emphasis should therefore be on the ability of a person to regain capacity to make his or her own decisions. The Bill must go further than 'taking account of' the past wishes of an individual. The Bill should provide a legislative framework for binding advance directives, instructions given by individuals specifying what actions should be taken for their health in the event that they are no longer able to make decisions due to illness or incapacity. This should include provision for the appointment of a health care substitute decision-maker.
The CRPD does not mention specifically substitute decision-making and it should therefore be confined to last resort and should have appropriate safeguards and protections. Where a decision is taken to administer treatment or provide medication to someone who has been found to lack capacity, safeguards need to be in place, such as oversight mechanisms and independent reviews. Such a decision should only be taken where the treatment is necessary, is the least intrusive treatment appropriate to the patient's needs and is not contrary to an advance directive made by the individual.
The situation of 'incapacitated but compliant' patients needs to be urgently addressed in the Bill by providing for safeguards and review mechanisms regarding the de facto detention of persons who lack capacity in all inpatient and residential settings.
AI is concerned about the broad powers of informal decision-making in the hands of third parties under the Scheme. The use of informal decision-making must be restricted to 'minor or routine' matters relating to health or personal welfare.
As the Bill will impact persons under the Mental Health Act 2001, the Bill must address the interplay of its provisions with that Act, which is currently under review. Additionally the Bill should provide that young people aged 16 to 18 years are presumed to have capacity to make decisions about admission and detention unless proven otherwise, and introduce a 'sliding scale test' in determining whether a child under 16 has maturity and capacity to consent.
It is also essential that while there is a focus on the new capacity legislation, there must be recognition that our mental health system needs a radical overhaul. While there has been important progress in certain important areas such as closing old institutions and building new child and adolescent facilities, there is much that urgently needs to change.
We need a system where people can be treated in their own community wherever possible. Fully staffed, multi-disciplinary community mental health teams have not been developed across the country despite this being Government policy since the early 1980s. The World Health Organisation has recognised that legislation can play a major role in promoting community-based care for people with mental health problems and reducing involuntary admissions, and AI is asking the Government to consider how law could drive much-needed reform of the mental health services and put a statutory obligation on the HSE to deliver community services.
AI welcomes the Government's commitment to introducing a Capacity Bill that is in line with the CRPD. This important opportunity must be used to ensure that progressive legislation is introduced and that will allow Ireland to move a step closer to the effective protection and realisation of the equal rights of persons who experience mental health problems in accordance with international human rights laws. AI would strongly welcome a Bill that fully recognises the supports people need in order to enjoy legal capacity.