Monday, August 19, 2013

Assisted Decision-Making (Capacity) Bill 2013

The first stage of a new Bill known as the ‘AssistedDecision-Making (Capacity) Bill 2013’ (Number 83 of 2013), was presented to the Dail (Irish Parliament), on July 17th, by Alan Shatter the Minister for Justice and Equality.
This bill permits a third party to make life and death decisions in respect of the life of another who has become mentally incapacitated.

Certain provisions of the bill are a cause for concern such as those set out in sections 4, 25, 41, and 70.

Section 4 (2), (a), (b), and (c):
(2) Notwithstanding any other provision in this Act, the High Court, and not the court, shall have jurisdiction relating to every matter in connection with—
(a) non-therapeutic sterilisation,
(b) withdrawal of artificial life-sustaining treatment, or
(c) the donation of an organ,
where the matter concerns a relevant person who lacks capacity.

Section 25 (a) (vi), (vii):

(a) may, without prejudice to the generality of section 23(2)(b), authorise a decision-making representative for the relevant person to make decisions on behalf of the relevant person in respect of any one or more than one of the following matters:
(vi) whether or not the relevant person may travel outside the State;
(vii) granting or refusing consent to the carrying out or continuation of a treatment of the relevant person by a healthcare professional;
Section 41 (2) (b):                                                                                                                                                                                                                                                          
(2) A personal welfare decision—
(b) extends to giving or refusing treatment by a person providing healthcare for the donor other than refusing life-sustaining treatment.

Section 70 (1), (a), (b):

(1) In this Part— 10 “adult” means a person who—
(a) as a result of an impairment or insufficiency of his or her personal faculties, cannot protect his or her interests, and
(b) has reached 18 years of age;

These issues are a cause for concern for patients in Irish hospitals bearing in mind that following the 1993 Bland judgement in the UK deliberate killing by dehydration became more prevalent. The Bland judgement actually opened the door to euthanasia permitting doctors to dehydrate and starve to death certain mentally incapacitated patients. What the UK Mental Capacity Act does, through its provisions such as, advance decisions, lasting powers of attorney together with the re-definition of "best interests" and "medical treatment", is to extend the principles of the Bland decision to all mentally incapacitated patients.

Reform of the law on decision-making capacity, according to an Explanatory Memorandum published with the newly proposed Irish legislation, is one of the actions required to enable the State to ratify the United Nations Convention on the Rights of Persons with Disabilities and the Bill gives effect in the State to the Hague Convention on the International Protection of Adults. The Bill also provides for the establishment of a new statutory office, the Office of the Public Guardian, which will supervise decision-making assistants, co-decision- makers, decision-making representatives and persons holding enduring powers of attorney.

The Explanatory Memorandum for the new Irish legislation explains that the background and purpose of the Bill is to reform the law and to provide a modern statutory framework that supports decision-making by adults and enables them to retain the greatest amount of autonomy possible in situations where they lack or may shortly lack capacity.
The Bill changes the existing law on capacity, shifting from the current all or nothing status approach to a flexible functional one, whereby capacity is assessed on an issue- and time-specific basis. The Bill replaces the Wards of Court system with a modern statutory framework to assist persons in exercising their decision-making capacity.
The Memorandum says the Bill provides a statutory framework enabling formal agreements to be made by persons who consider that their capacity is in question, or may shortly be in question, to appoint a trusted person to act as their decision-making assistant to assist them in making decisions or as a co-decision-maker who will make decisions jointly with them.
The Memorandum continues by saying that the Bill also provides for the making of applications to court in respect of persons whose capacity may be in question to seek a declaration as to whether those persons lack capacity and for the making of consequent orders approving co-decision-making agreements or appointing decision-making representatives.
The Memorandum also explains that Bill provides for protection from liability for informal decision-makers in relation to personal welfare and healthcare decisions made on behalf of a person with impaired capacity where such decisions are necessary and where no formal decision-making arrangements are in place. It modernises the law relating to enduring powers of attorney.

We shall continue to monitor the progress of this Bill as it goes through the various stages in the Dail