The Assisted Decision Making (Capacity) Bill 2013: A step in the right direction but does it go far enough?

• Author: Kevin Healy
• Position: BCL (International) II, University College Cork
• Pages: 22-35

[2015] COLR

22

THE ASSISTED DECISION MAKING (CAPACITY) BILL 2013:

A STEP IN THE RIGHT DIRECTION BUT DOES IT GO FAR ENOUGH?

Kevin Healy*

A INTRODUCTION

It is said that disability is the last frontier in the struggle for civil rights.

1

Within this debate,

is the well supported argument that almost every person is capable of expressing their will

and preferences with the right support provided to them.

2

Ireland's Assisted Decision Making

(Capacity) Bill 2013 (the Bill), introduced to enable Ireland to ratify the Convention on the

Rights of Persons with Disabilities,

3

is currently before the committee stage of the Dáil. The

Bill sees the abolition of the much outdated current ward of court system, and the inclusion of

an automatic review of those currently under wardship. The Bill moves away from the ‘best

interests’ principle, which has been interpreted in a paternalistic way by the Irish courts, and

moves towards the will and preferences model. Notwithstanding these positive moves

forward by the Bill, there are still some concerns with the provisions of the Bill. In this article

the Bill shall be assessed from a human rights perspective, in particular its conformity with

the CRPD. Beginning with a brief outline of the definition of capacity within the Bill,

pointing out any problems with the definition before moving on to look specifically at

Informal Decision Making, Co-Decision Makers and Decision Making Representatives under

the Bill and the problems which these provisions may present.

* BCL (International) II, University College Cork.

1

Eilionóir Flynn and Anna Arstein-Kerslake ‘Legislating personhood: realising t he right to support in exercising

legal capacity’ [2014] 10 International Journal of Law in Context 81, 84.

2

ibid 84.

3

Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May

2008) 2515 UNTS 3 (CRPD).