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

AuthorKevin Healy
PositionBCL (International) II, University College Cork
Pages22-35
[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Bill sees the abolition of the much outdated current ward of court system, and the inclusion of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).

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