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
