Zappone: Assisted Decision-Making Bill represents a global innovation in laws

23.11.2015

Senator Katherine Zappone commented in the Seanad on the Assisted Decision-Making (Capacity) Bill on November 10th.  While the Senator was complimentary of the Bill for its incorporation of UN Convention principles, she also offered her feedback to ensure the Bill reaches the highest possible standards and fully ensures the human rights of people with disabilities, mental health problems and older people.  Read her full speech on this important issue below.

I welcome the Minister of State and congratulate her on the process to date and her great dedication to it. It is very impressive and none of us doubt her commitment to this. I am happy to have participated as a member of the Joint Committee on Justice, Defence and Equality in some of the process. The Assisted Decision-Making (Capacity) Bill represents a global innovation in laws related to legal capacity and the rights of people with disabilities, those with mental health problems and older people. It seeks to implement the principles of the UN Convention on the Rights of Persons with Disabilities by ensuring that people are provided with support to exercise their legal capacity and that people enjoy respect for their will and preferences rather than having their decisions made for them based on outdated and patronising concepts, such as best interest. The Minister of State has removed many of those outdated and patronising concepts as the Bill has progressed over the past number of years.

Changes are still needed to the Bill to ensure it fully respects the human rights of people with disabilities, mental health problems and older people. I agree with the principles guiding the Bill the Minister of State enunciated so clearly in her speech. I have some questions on some of the ways in which those guiding principles will be legally implemented. The Bill currently states that a person's legal right to make a particular decision can be removed based on a functional assessment of mental capacity. That is how I read it. When I introduced my Private Members' Bill on consent to sex in 2014, the Criminal Law (Sexual Offences) (Amendment) Bill, I set out the problems with applying a functional test of mental capacity to many areas of a person's life, including decision-making about relationships and sex. The functional test requires a person to demonstrate that she understands the nature and the consequences of her decision before it will be legally respected. This test is applied with discrimination to people with cognitive disabilities, as it is represented in the Bill, while the rest of us would not allow our own mental capacity to be questioned in this way. Which of us could say with confidence that we fully understood all the consequences of major decisions in our lives, for example, decisions about marriage, where and with whom to live, or voting? I accept the comments on amendments and voting, and I welcome that. The reality is that, if tested, many of us would be shown not to have had mental capacity, as it is defined in the Bill, to make these decisions. The standard of mental capacity required under the Bill is too high for most ordinary people to meet even on major decisions affecting their lives. Most of us enjoy the dignity of risk to make decisions that we do not fully understand. People with intellectual disabilities, mental health difficulties and older people have generally been denied this dignity of risk to make decisions without understanding all the foreseeable consequences. These groups are more likely to be asked to prove their mental capacity rather than the rest of the population. The UN Committee on the Rights of Persons with Disabilities has said:

The concept of mental capacity is highly controversial in and of itself. It is not, as it is commonly presented, an objective, scientific and naturally occurring phenomenon. Mental capacity is contingent on social and political contexts, as are the disciplines, professions and practices which play a dominant role in assessing mental capacity.
Of equal importance, the UN committee stated - Senator O'Donovan referred to this - that under Article 12 of the convention "perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity". If the Bill is enacted in its current form, it will not meet the requirements set out by the UN committee which monitors compliance with the UN Convention on the Rights of Persons with Disabilities. Amendments are required to replace the current assessment of mental capacity with a process aimed at discovering the person's will and preferences. This would comply with the articulation of the guiding principles identified by the Minister of State. There should be a process of discovering the person's will and preferences that places the person's wishes at the centre of all decision-making processes and that replaces the testing of mental capacity with an empowering and supportive process. An amendment is required to change the definition of capacity in section 3 from a functional test of mental capacity to a universal approach to legal capacity, something that can be applied to everyone. Further amendments are required to ensure that mental capacity does not form the basis for making a binding decision-making assistant agreement and that a lack of mental capacity is not the trigger for the appointment of a decision-making representative.

Section 122 states that "nothing in this Act shall be construed as altering or amending the law in force on sexual relations." The Minister for Justice and Equality, Deputy Fitzgerald, recently introduced the Criminal Law (Sexual Offences) Bill 2015 in the Seanad. The general scheme of the Bill prepared by the Department of Justice and Equality stated that it would replace the existing law on sexual offences that applies to people with disabilities, namely, section 5 of the Criminal Law (Sexual Offences) Act 1993. However, the provision to replace section 5 was not included in the text of the Bill introduced to the Seanad in September and is proposed to be added on Committee Stage. I have already communicated my disappointment about this matter to the Minister, Deputy Fitzgerald. If the new provision is based on the concept of sexual offences against vulnerable persons as set out in the general scheme published by the Department in 2014, it risks further disempowering people with disabilities and undermining their ability to give valid consent to sex. A more appropriate approach, as I set out in my Private Members' Bill, is to develop disability-neutral sexual offences based on the concept of abuse of a position of power or authority to obtain consent to sex. This should be combined with reform of evidence law to ensure that people with disabilities are supported throughout the criminal process. Support to give evidence and testify in court is particularly important for disabled survivors of sexual violence and more reform is greatly needed in this area.

Those are my substantive comments. I look forward to a robust debate on areas that I have developed an interest in and made recommendations on as the Bill progresses through the Seanad. Ireland has a unique opportunity to show world leadership on legal capacity reform and the Minister of State has done an amazing job to get us to this point today. I would like to see further amendments that help us to move away from a discriminatory assessment of mental capacity towards empowering approaches that respect the will and the preferences of the individual.

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