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

AuthorMary Donnelly
PositionSenior Lecturer, Faculty of Law, University College Cork
2007] Assessing Legal Capacity
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outdated Lunacy Regulation (Ireland) Act 1871,2 the LRC’s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
* 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
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
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
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
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.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT