TABLE OF CONTENTS

I.Introduction

II.Appropriate and Effective Safeguards

1.Application of the Guiding Principles to the Provisions of the Scheme..

2.Supervisory Role of the Office of Public Guardian......

III.Procedural Safeguards

1.Legal Representation......

2.Fair Hearing......

3.Duration and Review......

IV.Detention

1.Permissible Grounds for Deprivation of Liberty......

2.Regular Review of Detention by an Independent Body......

  1. Introduction

The Irish Human Rights Commission (IHRC) is Ireland’s National Human Rights Institution, set up by the Irish Government under the Human Rights Commission Acts 2000 and 2001.[1] The IHRC has a statutory remit to endeavour to ensure that the human rights of all persons in the State are fully realised and protected in the law and practice of the State. Its functions include, keeping under review the adequacy and effectiveness of the law and practice in the State with regard to Constitutional and international human rights standards deriving from the Irish Constitution and the international treaties to which Ireland is a party.[2]The IHRC is mandated to make recommendations to the Government as it deems appropriate in relation to the measures which the IHRC considers should be taken to strengthen, protect and promote human rights in the State.[3]

The IHRC welcomes the opportunity to comment on the provisions of the Scheme of Mental Capacity Bill 2008 (2008 Scheme), which was referred to the IHRC pursuant to Section 8(b) of the Human Rights Commission Act 2000 by the Department of Justice, Equality and Law Reform, on 16 September 2008. The main purpose of the 2008 Scheme is to reform the existing Wards of Court system, in so far as it applies to adults, and effectively replace it with a modern statutory framework governing decision making on behalf of persons who lack capacity.[4]The proposed Bill will replace the existing Lunacy Regulation (Ireland) Act 1871.

Overall the IHRC welcomes the 2008 Scheme which broadly reflects the recommendations of the Law Reform Commission (LRC).[5]As recommended by the LRC, the 2008 Scheme reflects the international move towards a functional approach to capacity.[6]In its 2006 Report on Vulnerable Adults and the Law the LRC describes the functional approach as involving an “issue-specific and time-specific assessment of a person’s decision making ability”.[7]It recognises, for example, that a person may have the capacity to decide their living arrangements but not have the capacity to enter into a financial arrangement. This is in stark contrast to the current system whereby a finding of incapacity is applied to every decision and legal transaction a person may make.

The functional approach to capacity is informed by the human rights values of dignity and autonomy. It is given clear expression in Article 12 of the UN Convention on the Rights of Persons with Disabilities and is also reflected in thein the evolving jurisprudence of the European Court of Human Rights (ECtHR)[8] and in the development of soft law at European level, including in a number of Recommendations by the Committee of Ministers.[9]In this regard, the IHRC considers the 2008 Scheme to be an important step towards compliance with international human rights standards and best practice in the field.

Under the 2008 Scheme, a determination of incapacity by a court and the subsequent decision or decisions made on the person’s behalf,by an order of the court,will continue to have a far-reaching impact upon the individual’s basic rights and liberties, including potentially the right to liberty, autonomy and privacy. For this reason, the process employed in making an assessment of capacity and in determining the decision or decisions to be taken on the person’s behalf is of fundamental importance. It is crucial that appropriate and effective safeguards exist to ensure that the interference is no greater than necessary and to protect the individual from an arbitrary or unjustifiable interference.

The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) has been at the forefront of developing adequate and effective safeguards in this area of law. These Observations examine the 2008 Scheme from the perspective of national and international human rights standards and make a number of specific recommendations on the need to strengthen the safeguards in the 2008 Scheme.

In particular, these Observations examine the application of the guiding principles outlined at the beginning of the 2008 Scheme to the rest of the provisions of the 2008 Scheme. In addition, the Observations focus on procedural safeguards, including the right to legal representation, the right to a fair hearing and safeguards concerning the duration and review of decisions taken. Furthermore, these Observations examine the need for adequate safeguards in relation to the committal of a person lacking capacity to a psychiatric institution. A person who lacks legal capacity to make medical decisions for him or herself and who is committed to a psychiatric institution is regarded as beingdeprived of their liberty under Article 5 of the ECHR. The Observations examine in particular the need for safeguards relating to the permissible grounds for deprivation of liberty and for the regular review of such detention by an independent body.

In line with the recommendations contained in these Observations, the IHRC hopes that the Minister for Justice, Equality and Law Reform will carefully consider and reformulate the areas of the 2008 Scheme which raise clear questions of compliance with Ireland’s national and international human rights obligations.

  1. Appropriate and Effective Safeguards

It is a well established principle of international human rights law that the domestic framework governing legal capacity must provide for appropriate and effective safeguards. Article 12(4) of the UN Convention on the Rights of Persons with Disabilities provides:

States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests.

Ireland signed the UN Convention on the Rights of Persons with Disabilities when it opened for signature on 30 March 2007. The Government has indicated its intention to ratify the Convention as quickly as possible and has stated that the reforms proposed in the 2008 Scheme will enable the State to meet its obligations under the UN Convention on the Rights of Persons with Disabilities, insofar as it relates to legal capacity issues.[10]

The ECHR has been given express effect in Irish law by way of the European Convention on Human Rights Act 2003, and is directly enforceable in the Irish Courts.The provision of adequate and effective safeguards is a basic requirement under the ECHR. The ECtHR has concluded that the deprivation of legal capacity amounts to an interference with the private life of the applicant.[11] Any interference with an individual’s right to respect for his private life will constitute a breach of Article 8 of the ECHR unless it is “in accordance with the law” and is “necessary in a democratic society” for one of the specified legitimate aims set out in Article 8(2).[12]In interpreting the phrase “necessary in a democratic society” the ECtHR has stated that the inference must be “proportionate to the legitimate aim pursued”.[13] In assessing the proportionality of the interference the Court will consider whether adequate and effective safeguards exist to ensure that the interference with the right is no greater than necessary and to protect the individual from an arbitrary or unjustifiable interference.[14]

  1. Application of the Guiding Principles to the Provisions of the Scheme

The guiding principles are set out in Head 1 of the 2008 Scheme. The LRC described these guiding principles as the “overarching framework for persons making a decision on behalf of an adult who lacks capacity to make the relevant decision”.[15] These principlesare important safeguards in protecting the rights of the individuals concerned and in ensuring that an interference with the individual’s rights is no greater than necessary. The guiding principles provide, inter alia, for a presumption of capacity, that a person shall not be treated as unable to make a decision unless all practicable steps have been taken to help the person make the decision and that all actsand decisions on behalf of a person who lacks capacity are done or made in their best interests.[16] The criteria to be applied in determining what is in the persons “best interests” is set out in Head 3 of the 2008 Scheme.

a)Relevant Provisions of the 2008 Scheme

Head 5 of the 2008 Scheme provides that the court may make declarations as to whether a person has or lacks capacity to make a decision or decisions on such matters as are described in the declaration.[17]

Head 6 of the 2008 Scheme provides that if the court has declared that a person lacks capacity to make a decision or decisions concerning his or her personal welfare or his or her property, the court may, by making an order, make the decision or decisions on the person’s behalf or appoint a personal guardian to make the decision or decisions on the person’s behalf.[18] Head 6(2) provides that the order is to be made “with due regard to the principles set out in Head 1 and the best interests of the person set out in Head 3.”

b)Analysis and Recommendations

Given the fundamental importance of the guiding principles, the IHRC considers that any provision of the 2008 Scheme which enables a person (including the court) to make a decision, declaration or order on an individual’s behalf should explicitly refer to the guiding principles. While the powers of the court are qualified in Head 6 by referring back to Head 1 and Head 3, this approach is not mirrored in Head 5. In the view of the IHRC, the language in Head 5 should be qualified by explicitly providing that,in determining whether a person has or lacks capacity,the courts decision should be subject to the guiding principles set out in Head 1 and the best interests of the person set out in Head 3.

Accordingly, the IHRC considers that a sentence should be inserted in Head 5 providing that, “the powers of the court under this section are subject to the provisions of this Act and, in particular, Head 1(Guiding Principles) and Head 3 (Best Interests).” Of note, this would reflect the language in Head 11(6) of the 2008 Scheme.

In Head 6(2) of the 2008 Scheme the wording, “with due regard to the principles set out in Head 1 and the best interests of the person set out in Head 3”,(emphasis added) is also of concern. This wording is similarly reflected in Head 32(1)(a).[19] In the view of the IHRC, the language in Head 6(2) and Head 32(1)(a) requires strengthening. The IHRC considers that the wording suggested above should beinserted alternatively so that this part of the provision would read, “the powers of the court under this section are subject to the provisions of this Act and, in particular, Head 1(Guiding Principles) and Head 3 (Best Interests).[20]

  1. Recommendations

The IHRC recommends that:

  • The language in Head 5 should be qualified by explicitly providing that,in determining whether a person has or lacks capacity, the courts decision should be subject to the guiding principles set out in Head 1 and the best interests of the person set out in Head 3.
  • In Head 6(2) and Head 32(1)(a) the wording, “with due regard to the principles set out in Head 1 and the best interests of the person set out in Head 3”, should be replaced with the wording “the powers of the court under this section are subject to the provisions of this Act and, in particular, Head 1(Guiding Principles) and Head 3 (Best Interests)”.
  1. Supervisory Role of the Office of Public Guardian

The 2008 Scheme establishes an Office of Public Guardian.[21] One of the primary functions of the Public Guardian is to supervise the donees appointed under an enduring power of attorney and to supervise personal guardians appointed by the court.[22]

a)Relevant Provisions of the 2008 Scheme

Head 6(2)(b) of the 2008 Scheme provides that the court may make an order appointing a personal guardian to make the decision or decisions on behalf of the person that lacks capacity.

Head 32(2)(g) provides that a function of the Public Guardian is to receive reports from donees of enduring powers of attorney and personal guardians appointed by a court or by the Public Guardian on the request of a court.

b)Analysis and Recommendations

In its 2006 Report on Vulnerable Adults and the Law the LRC considered that when a guardianship order is made the order must set out precisely what the terms of the guardianship order are, including the decision-making authority of the personal guardian and the necessary supervision and review required.[23] The LRC has stated that an important supervisory mechanism is the requirement that the personal guardian report to the Public Guardian on the welfare of the person who lacks capacity. The LRC considered that these reports should be made at regular intervals based on the details of each individual case.[24]

While Head 32(2)(g) establishes that it is a function of the Public Guardian to receive reports from personal guardians, there is no requirement that these reports are received at regular intervals taking into consideration the particular circumstances of each individual case. In line with the recommendations of the LRC, the IHRC considers that,at the time the court makes an order appointing a personal guardian, in addition to setting out precisely the decision-making authority of the personal guardian, the order should specify the necessary supervision required of the personal guardian, including their obligation to report at regular intervals, as determined by the court based on the individual circumstances of the case. The IHRC considers that for reasons of clarity this should be expressly provided for in the legislation.

  1. Recommendation

The IHRC recommends that:

  • The 2008 Scheme should expressly provide that, at the time the court makes an order appointing a personal guardian, in addition to setting out precisely the decision-making authority of the personal guardian, the order should specify the necessary supervision required of the personal guardian, including their obligation to report at regular intervals, as determined by the court based on the individual circumstances of the case.
  1. Procedural Safeguards

The ECtHR has indicated that special procedural safeguards may be called for in order to protect the interests of persons, who on account of their mental disabilities are not fully capable of acting for themselves.[25]The need for appropriate procedural safeguards is further heightened by the fact that all applications under Part 1 of the 2008 Scheme shall be heard in private.[26]

This section will examine three factors which the IHRC considers are essential to ensureappropriate and effective procedural safeguards are in place. These are: provision for legal representation, a fair hearing during the decision making process and provision for a review of the decisions made on behalf of the person who lacks capacity.

  1. Legal Representation

a)National and International Law and Best Practice

The ECtHR has ruled that Article 6(1) of the ECHR guarantees effective access to the courts.[27] Article 6(1) provides, “[i]n the determination of his civil rights and obligations or of any criminal charge against him everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

In the case of Airey v. Ireland the ECtHR found that Article 6(1) may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensible for effective access to the court.[28] Whether the State will be compelled to provide the assistance of a lawyer will depend on the particular circumstance of the case. In this case it was a combination of the applicant’s circumstances, as well as the complexity of the procedure, that led to a breach of Article 6(1) due to the absence of legal aid.

The ECtHR provided further analysis of the circumstances where States are obliged to provide legal assistance for civil defendants in the case of Steel and Morris v. United Kingdom.[29] The Court held that:

The question of whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend inter alia upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him or herself effectively.[30]

A number of Irish decisions have supported the assertion that a party to civil proceedings may have a right to legal aid under the constitutional requirements of fairness and justice. The Supreme Court in TheState (Healy) v. Donoghueheld that there was a constitutional right to legal aid in criminal cases.[31]The former Chief Justice O’ Higgins stated:

The requirements of fairness and justice must be considered in relation to the seriousness of the charge brought against the person and the consequences involved for him. Where a man's liberty is at stake, or where he faces a very severe penalty which may affect his welfare or his livelihood, justice may require more than the application of normal and fair procedures in relation to his trial. Facing as he does, the power of the State which is his accuser, the person charged may be unable to defend himself adequately because of ignorance, lack of education, youth or other incapacity. In such circumstances his plight may require, if justice is to be done, that he should have legal assistance. In such circumstances, if he cannot provide such assistance by reason of lack of means, does justice under the Constitution also require that he be aided in his defence? In my view it does.[32]

In Stevenson v. Landy and others the High Court considered the application of these provisions to wardship proceedings instituted by the then Eastern Health Board.[33] While acknowledging that the present case involved civil proceedings, Mr. Justice Lardner considered that the dictaof Chief Justice O’ Higginswas applicable to the wardship proceedings and concluded that the Applicant who sought to defend such proceedings was entitled to legal aid.[34] The approach of Mr. Justice Lardner was endorsed in the more recent case O’Donoghue v. The Legal Aid Boardand others.[35]