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Mental Capacity Bill 2008

Currently, where a person is considered incapable of managing his affairs, an application to court can be made to make that person a ward of court. On 15 September 2008, the Government approved proposals for a Mental Capacity Bill (Bill). The purpose of the Bill is to replace the wards of court system, in so far as it applies to adults, with a modern framework governing decision-making on behalf of persons who lack capacity.

The Bill will therefore only apply to persons who have reached the age of majority. It will also give effect to the Hague Convention on the International Protection of Adults and the UN Convention on the Rights of Persons with Disabilities.

Guiding principles

The Bill contains a number of guiding principles to assist both the court and persons making a decision on behalf of an adult who lacks capacity:
(a) It will be presumed that a person has capacity;
(b) No intervention is to take place unless it is necessary, having regard to the needs and individual circumstances of the person, including whether the person is likely to increase or regain capacity;
© A person will not be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success;
(d) A person is not to be treated as unable to make a decision merely because he makes an unwise decision;
(e) Any act done or decision made under this Bill must be done or made in the way which is least restrictive of the person’s rights and freedom of action;
(f) Due regard must be given to the need to respect the right of a person to his dignity, bodily integrity, privacy and autonomy;
(g) Account must be taken of a person’s past and present wishes, where ascertainable;
(h) Account must be taken of the views of any person with an interest in the welfare of a person who lacks capacity, where these views have been made known;
The Bill does not specify a hierarchy of authority in this regard and therefore, it would appear that a doctor would need to take into account the views of all of these people when considering treatment to be provided. However, a doctor’s overriding duty is still to act in the patients’ best interests.
(i) Any act which is done or any decision made under this Bill for or on behalf of a person who lacks capacity must be done or made in his best interests.

Capacity

The Bill establishes a presumption of capacity. Capacity is defined as ‘the ability to understand the nature and consequences of a decision in the context of available choices at the time the decision is to be made’.

A person lacks the capacity to make a decision if he is unable to:
(a) Understand the information relevant to the decision;
(b) Retain that information;
© Use or weigh that information as part of the process of making the decision; or
(d) Communicate his decision.
Any question as to whether a person has capacity is to be decided on the balance of probabilities. The Bill also provides that a person is entitled to supported decision-making. The person must, so far as is reasonably practicable, be permitted to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

Where it is not possible to support a person in this way, the court or a court appointed personal guardian will act as the substitute decision-maker.

Decision making

Before a medical practitioner performs any act in connection with the personal care, health care or treatment of another person whose decision-making capacity is in doubt, he must have regard to the general principles and comply with the following requirements:
1. Before doing the act, take reasonable steps to establish whether the person lacks capacity in relation to the matter in question;
2. When doing the act, reasonably believe that the other person lacks capacity in relation to the matter in question, and it is in the other person’s best interests that the act be done.
The Bill gives medical practitioners immunity from liability if they follow the steps above when treating patients.

Guardianship matters

Where a person has been found to lack capacity, a personal guardian can be appointed by the High Court or the Circuit Court to make decisions concerning his personal welfare or property and affairs. Decisions on certain matters such as non-therapeutic sterilisation, withdrawal of artificial life-sustaining treatment or organ donation will only be made in the High Court, however.

The Bill will also establish an independent Office of Public Guardian to supervise persons appointed by the courts to perform guardianship or decision-making functions on behalf of incapacitated persons. In situations where there is no person willing or able to act as a personal guardian, the Office will act as a guardian of last resort. The timetable for implementation of the Bill is unclear and it may be some time before it becomes law as it will firstly have to be introduced into the Dail.

• Elaine Healy, Solicitor, Beauchamps Solicitors.
  Email: e.healy@beauchamps.ie

Posted in Guests on 29 September 2008
Tags: medico-legal