Assessing legal capacity: process and the operation of the functional test

• Author: Mary Donnelly
• Position: Senior Lecturer, Faculty of Law, University College Cork
• Pages: 141-168

2007] Assessing Legal Capacity

141

ASSESSING LEGAL CAPACITY: PROCESS AND

THE OPERATION OF THE FUNCTIONAL TEST

MARY DONNELLY*

INTRODUCTION

The position of adults who lack legal capacity has been

moving slowly towards the forefront of the reform agenda. The

publication of the Law Reform Commission (“LRC”) Report on

Vulnerable Adults and the Law1 has directed much needed

attention to this area. Given that this issue is still governed by the

outdated Lunacy Regulation (Ireland) Act 1871,2 the LRC’s

recommendation that legislation be enacted to establish a modern

scheme for adult guardianship is certainly to be welcomed.3 The

development of an appropriate legal framework will require

engagement with complex questions of policy and principle and

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* Senior Lecturer, Faculty of Law, University College Cork. I would like to

express my gratitude to the Hon. Mr. Justice Finnegan who, while President of

the High Court, kindly agreed to meet with me and to discuss some of the

issues considered here. Any views expressed and any errors in the article are

of course my own.

1 L.R.C. 83-2006 (Dublin: Law Reform Commission, 2006). This Report was

preceded by two consultation papers: see Consultation Paper on Law and the

Elderly (L.R.C. C.P. 23-2003); Law Reform Commission Consultation Paper

on Vulnerable Adults and the Law: Capacity (L.R.C. C.P. 37-2005) (Dublin:

Law Reform Commission, 2005). For commentaries on the consultation

papers, see Donnellan “The Law Reform Commission’s Proposals on Law and

Older People” and Schweppe “The Law Reform Commission’s Proposals on

Legal Capacity of Older People” in O’Dell (ed.) Older People in Modern

Ireland: Essays on Law and Policy (Dublin: First Law, 2006).

2 As supplemented by Order 67 of the Rules of the Superior Courts (S.I. No. 15

of 1986).

3 In a comprehensive review of the area, the Law Reform Commission makes

an extensive set of recommendations. These include the enactment of capacity

legislation, including e.g. a statutory definition of capacity (para. 2.20);

provision for the establishment of a Guardianship Board (para. 6.40) and of an

Office of the Public Guardian (para. 7.14).

Judicial Studies Institute Journal [2007:2

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this is a challenge which urgently needs to be addressed at a

legislative level.4

A designation of incapacity has enormous practical, legal

and psychological significance for the individual involved.

Following the designation, she5 loses the freedom to make

decisions for herself, at least in relation to the matter(s) to which

the incapacity relates. Instead, others will decide for her on the

basis of what they believe to be in her best interests. Depending

on the circumstances, she may be told where to live, what medical

treatment to have, what contracts she may enter, whether she may

bequeath her property and whether or not she may marry or have

a sexual relationship. Thus, her fundamental rights to liberty, to

autonomy and to privacy will be significantly undermined by the

designation of incapacity. Psychologically, too, a designation of

incapacity may have an adverse impact on the individual who has

to contend with both the practical limitations on her freedom and

the stigmatising effect of being labelled “incapable”.6 For these

reasons, the way in which capacity is assessed must be monitored

carefully in order to ensure that a designation of incapacity is

made only where it is necessary and appropriate.

This article examines the way in which a formal (or judicial)

designation of incapacity is made.7 The article begins with a brief

historical overview of the ways in which capacity assessment has

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4 A Private Members’ Bill, entitled the Mental Capacity and Guardianship Bill,

2007, was introduced in the Seanad in February 2007 by Senators O’Toole and

Henry (Bill No. 12 of 2007). The Bill fell with the dissolution of the

Oireachtas; however, it may have helped to propel the issue up the legislative

agenda.

5 For convenience, the female pronoun is adopted throughout this article.

6 Winick “The Side Effects of Incompetency Labelling and the Implications for

Mental Health Law” (1995) 1 Psychology, Public Policy and Law 6, 8-9 argues

that, in addition to the social stigma associated with a designation of

incapacity, a person designated incapable may experience effects such as

learned helplessness (where an individual comes to believe that she cannot

change her situation and ceases to try to do so).

7 While the article is concerned with the formal process of capacity assessment,

in many situations, especially where the adult is compliant with a proposed

decision, incapacity is determined informally, usually by a medical

professional, without judicial oversight. In such circumstances, the discussion

of the difficulties encountered by medical professionals in assessing capacity,

as outlined in the text following note113 infra, is especially pertinent.