The Irish Human Rights Commission recently appeared as an amicus curiae (“friend of the court”) in D v. Health Service Executive. This case is challenging the constitutionality of Section 57 of the Mental Health Act 2001 and also its compatibility with the European Convention on Human Rights. What is in question is the legal capacity of people with disabilities, specifically the right to impose non-consensual medical treatment on a patient. Section 57 allows for such treatment where the patient is deemed to lack capacity by their consultant psychiatrist and such treatment is necessary to safeguard the life of the patient, to restore his or her health, or to alleviate his or her condition or suffering.
Dr Maurice Manning, President of the IHRC stated that “At the heart of the IHRC's submissions in the case is the presumption of capacity that all people, including people with mental disabilities, enjoy under Article 12 of the UN Convention on the Rights of Persons with Disabilities...The IHRC's submissions as a 'friend of the court' will additionally draw the Court's attention to the rights protected under Articles 6 and 8 of the ECHR and to recent case law of the European Court of Human Rights on these matters."
Meanwhile, Thomas Hammerberg, the Commissioner for Human Rights in the Council of Europe, has called on the Irish government to focus on a rights based approach in new legal capacity legislation. In an opinion piece for the Irish Times, he writes that reforms are underway throughout most of Europe to move towards “supported decision making”.
This notion is found predominantly in the UN Convention on the Rights of People with Disabilities. This Convention compels the law to assume that every individual has capacity and rather than focusing on decision making deficiencies, there should be focus on the means of supporting individuals to make their own decisions. Ireland has signed but not ratified the UN Convention on the Rights of People with Disabilities. Article 12 of the Convention states that “states Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” and that “states parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity”. This is a very significant move away from the current situation of most of Europe, where generally those with a disability have a guardian who will then make decisions on their behalf.
Further afield, a provision of the Canadian Evidence Act has been struck down by the Canadian Supreme Court in R. v. Dai 2012 SCC 5. This provision allowed defendants to challenge the competency of those suffering a mental illness to provide testimony. The court held that such a provision was a violation of the right to equality before the law. Although the test which those with mental illnesses will have to pass to prove the truth in their testimony will be more stringent than the test for those without an illness, as held by McLachlin CJC, it will “make it impossible to bring to justice those charged with crimes against the mentally disabled”.