A HUMAN RIGHTS-BASED approach should be pursued in the proposed Mental Capacity Bill which ensures the protection of the rights of individuals, according to an Oireachtas committee report.
The Joint Committee on Justice, Defence and Equality said today that the proposed legislation should be amended to ensure that the role of the office of public guardian (or its equivalent) is a supporting role for legal capacity, and not a substituting role, in terms of decision making.
The group raised concerns over human rights elements of legal capacity, saying that people whose capacity has been called into question cannot marry, have a family, manage their own finances, decide where to live, have a sexual relationship, vote, enter into contracts or make their own medical decisions.
The committee also said that concerns had been raised over the ‘best interests model’ which was described as a “paternalistic view” of trying to determine a person’s best interests, even if that person could decide that for themselves.
A legal framework is needed for ensuring the support offered is voluntary, proportional, free of conflicts of interest, and tailored to circumstances, the committee said, and substitute decision makers should only become involved as a last resort.
It also said it had heard that a court was not the appropriate setting for deciding a person’s legal capacity, and that a flexible informal tribunal in that person’s own setting would be most effective.
The joint committee recommended taking particular care with the use of language, saying that “the use of legal terms such as ‘idiot’, ‘lunatic’ or ‘of unsound mind’ have no place in today’s society and all references and language of this nature must not be used in any legislation”:
We must remember that these are real people and entitled to recognition before the law on an equal basis with everyone else and they should be referred to as people.
The committee chairman David Stanton TD said the bill is very important for people “who have difficulty making decisions for various reasons”:
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“During the Committee hearings on legal capacity, I was particularly struck by the profound and negative impact the law as it currently stands can have on the daily lives of some of our most vulnerable citizens,” Stanton said.
“During the Committee hearings on legal capacity, I was particularly struck by the profound and negative impact the law as it currently stands can have on the daily lives of some of our most vulnerable citizens.”
“All points raised in submissions have been noted and the report will be sent to the Minister as requested.”