__________
CONSULTATION PAPER
ON
VULNERABLE ADULTS AND THE LAW: CAPACITY
__________
(LRC CP 37-2005)
IRELAND
The Law Reform Commission
35-39 Shelbourne Road, Ballsbridge, Dublin 4
|
© Copyright |
The Law Reform Commission 2005 |
|
First Published |
May 2005 |
ISSN 1393 – 3140
THE LAW REFORM COMMISSION
Background
The Law
Reform Commission is an independent statutory body whose main aim is to keep
the law under review and to make practical proposals for its reform. It
was established on 20 October 1975, pursuant to section 3 of the Law Reform
Commission Act 1975.
The
Commission’s Second Programme for Law Reform, prepared in consultation with the
Attorney General, was approved by the Government and copies were laid before
both Houses of the Oireachtas in December 2000. The Commission also works on matters which are
referred to it on occasion by the Attorney General under the terms of the 1975
Act.
To date,
the Commission has published seventy one Reports containing proposals for
reform of the law; eleven Working Papers; thirty six Consultation
Papers; a number of specialised Papers for limited circulation; An Examination
of the Law of Bail; and twenty five Annual Reports in accordance with section 6
of the 1975 Act. A full list of its publications is contained in the
Appendix to this Consultation Paper.
Membership
The Law
Reform Commission consists of a President, one full-time Commissioner and three
part-time Commissioners. The Commissioners at present are:
President
The Hon Mrs Justice
Catherine McGuinness
Supreme Court
Full-Time
Commissioner Patricia T Rickard-Clarke
Solicitor
Part-Time
Commissioners Dr Hilary A Delany, Barrister-at-Law
Senior Lecturer in Law, Head of Law School, Trinity College Dublin
Professor Finbarr McAuley
Jean Monnet Professor of European Criminal Justice, University College Dublin
Marian Shanley, Solicitor
Secretary
John Quirke
Research Staff
Director of
Research
Raymond Byrne BCL, LLM, Barrister-at-Law
Legal
Researchers
Deirdre Ahern LLB,
LLM (Cantab), Solicitor
Alan Brady LLB, LLM
(Lond), Attorney-at-Law (New York)
Ronan Flanagan LLB, LLM (Cantab)
Roberta Guiry BCL, LLM (NUI)
Orla Joyce BCL, LLM (Cantab) Sinéad Ring BCL (Law & German), LLM (NUI)
Mary Townsend BCL, LLM (NUI)
Aisling Wall BCL, LLM (Cantab)
Administration Staff
Project
Manager
Pearse Rayel
Executive
Officer
Denis McKenna
Legal Information Manager
Conor Kennedy BA, H Dip LIS
Cataloguer
Eithne Boland BA
(Hons) H Dip Ed, H Dip LIS
Information
Technology
Officer
Liam Dargan
Clerical Officers
Alan Bonny
Debbie Murray
Principal Legal Researcher on this Consultation
Paper
Deirdre
Ahern LLB, LLM (Cantab), Solicitor
Further
information can be obtained from:
The
Secretary
The
Law Reform Commission
35-39
Shelbourne Road
Ballsbridge
Dublin
4
Telephone
(01) 637 7600
Fax
No
(01) 637
7601
Email
info@lawreform.ie
Website
www.lawreform.ie
ACKNOWLEDGEMENTS
The
Commission would like to thank the following for their advice in the
preparation of this Consultation Paper.
Dr Teresa
Carey, Inspector of Mental Hospitals
Denzil
Lush, Master of Court of Protection in England and Wales
Disability
Legal Resource
Dublin
Hospital Group Risk Management Forum
Dr Brendan McCormack, Clinical Director, Cheeverstown House,
Templeogue
Mental
Health Commission
National
Association for the Mentally Handicapped in Ireland (NAMHI)
National
Disability Authority
Noel A Doherty, Principal Officer,
Directorate of Reform and Development, Courts Service
Noel D
Doherty, Registrar, Office of Wards of Court
Dr Shaun O’Keeffe, Consultant
Physician and Geriatrician, Merlin Park Regional Hospital, Galway
Noel Rubotham, Director of Reform
and Development, Courts Service
St John of
God Services
The Medical
Council
The
Honourable Mr Justice Finnegan, President of the High Court
Full
responsibility for this publication, however, lies with the Commission.
TABLE OF CONTENTS
PART A............. the concept of
capacity
Chapter 1...... capacity in
context
B...... Limits on Decision-Making Ability
(5) Inability to Communicate Decisions
C...... Changing Perceptions of Disability
(1) Move from a Medical Model to a Social Model
(2) Recent Legislative Developments
D...... Capacity and Human Rights
(1) Constitutional Considerations
(4) The EU Charter of Fundamental Rights
Chapter 2...... legal capacity:
towards a functional approach
B...... The Debate on Capacity
C...... General Legal Principles on Capacity
(1) The Legal Presumption of Capacity
(2) Proving that a Person Lacks Legal Capacity
Chapter 3...... legislative
reform
B...... The Potential Role of Capacity Legislation
(1) Lack of Systematic Guidelines Addressing Legal
Capacity
(2) Promotion of Interests of Vulnerable Adults
(1) Structure of Capacity Legislation
(4) A Statutory Statement of Presumed Capacity
(5) A Statutory Definition of Capacity
Chapter 4...... review of
EXISTING LEGAL MECHANISMS TO ADDRESS LOSS OF CAPACITY
(1) Common Situations where Wardship Proceedings
Instituted
(2) Procedure under Section 15 of the 1871 Act
(4) Impact of Wardship on Legal Capacity
(5) Review of Capacity and Welfare of a Ward
C...... Enduring Powers of Attorney
(3) Impact of an EPA on Legal Capacity
(2) Enduring Powers of Attorney
PART B............. specific areas
of decision-making
Chapter 5...... capacity to
contract
C...... The Rules on Contractual Capacity
(1) Level of Understanding Required
D...... Appointment of Agents and Substitute Decision-Makers
(1) The Concept of Necessaries
(3) Liability to Pay a Reasonable Price
(5) Reform in England and Wales
F....... The Equal Status Acts 2000 to 2004
(1) A Presumption of Capacity to Contract
(2) Adjudicating on Contractual Capacity
Chapter 6...... personal
relationships
B...... Constitutional and Human Rights Considerations
(2) The European Convention on Human Rights
C...... Capacity to Consent to Sexual Relationships
(2) Sexual Acts with Adults with Limited Decision-Making
Ability
(3) Section 5 of the Criminal Law (Sexual Offences) Act
1993
D...... Capacity to Marry. 146
(1) Understanding the Nature of Marriage
(2) Entering a Caveat Concerning a Person’s Capacity to
Marry
(4) The Marriage of Lunatics Act 1811
Chapter 7...... capacity to make
healthcare decisions
B...... Legal Principles concerning Consent to Medical Treatment
(1) The Requirement of Informed Consent
(3) Age and Capacity Thresholds
(4) Right of Adult with Capacity to Refuse Treatment
C...... Assessment of Capacity to Make Healthcare Decisions
(1) Capacity is commensurate with the gravity of the
decision
(2) Consequences of choice not determinative of capacity
(3) Guidelines on the Assessment of Capacity
D...... Making Healthcare Decisions where an Adult Lacks Capacity
(1) Next of Kin and Consent Forms
(4) Enduring Powers of Attorney
(5) Clinical Trials and Research
E....... Reforms in the United Kingdom
(1) Developments in England and Wales
(3) Functional Test of Capacity
(4) Establishment of a Code of Practice
Chapter 8...... summary of
provisional
recommendations
APPENDIX A..... LIST OF LAW
REFORM COMMISSION PUBLICATIONS
Background
1.
This Consultation
Paper on Vulnerable Adults and the Law: Capacity is the second in a
series of two consultation papers published by the Law Reform Commission which
address the subject of vulnerable groups and the law.[1]
The first was the Consultation Paper on Law and the Elderly which was
published in June 2003.[2] The Consultation
Paper on Law and the Elderly made provisional recommendations concerning
legal mechanisms for the protection of older people. The recommendations
made by the Commission included a new substitute decision-making regime for the
appointment of family members and friends to engage in assisted and substitute
decision-making where an adult lacks capacity to make a decision. The
Consultation Paper also recommended the establishment of an Office of the
Public Guardian as a supervisory authority.
2.
The focus of the Consultation
Paper on Law and the Elderly was to make recommendations in relation to
older persons. However, the Commission acknowledged that:
“while
the improvements we recommend are made with elderly people in mind, they are
also relevant to other adults with decision making disabilities or who
otherwise need protection. The Commission has not analysed the issues
involved for other adults but considers that the proposed system could be
adapted to their needs without much modification.”[3]
3.
Following the publication of the Consultation
Paper on Law and the Elderly, the Commission held a public seminar on 17 November
2003.[4]
On the basis of views expressed at the seminar and submissions received by the
Commission on the Consultation Paper on Law and the Elderly, the
Commission made the decision to prepare and publish a second consultation paper
which would focus on legal capacity issues relevant to all adults with limited
decision-making, not just older adults.
4.
Legal rules concerning capacity have
traditionally functioned as a means of protecting those persons who are deemed
unable to make decisions with legal consequences. In certain
circumstances incapacity is imposed by operation of law. In the past, married
women could not, as general rule, enter into any contract.[5] Today the major limitation on
capacity imposed by operation of law relates to minority: under section 2 of
the Age of Majority Act 1985, persons under 18 who have not married are
minors in law and generally do not have legal capacity.[6]
Parents are generally the joint legal guardians of a child’s person and estate
while the child is under the age of 18 and have the legal capacity to make
decisions affecting the child’s welfare.[7]
5.
When a person reaches
adulthood at 18, parents or guardians no longer have the legal right to make
decisions on their behalf. The law presumes that the adult has the
capacity which the law requires to make legal decisions unless this is shown
not to be the case. The focus of this Consultation Paper is on reviewing
how legal capacity of persons aged 18 and above is defined in a number of key
areas of decision-making – capacity to enter into a contract, capacity to enter
into relationships and capacity to make healthcare decisions, and also the
existing substitute decision mechanisms of wardship and enduring powers of
attorney.[8]
Outline of
this Paper
Part
A:
The Capacity
Concept
6.
Chapter 1, “Capacity in
Context”, places the subject of legal capacity in a general context through
providing an overview of the type of situations in which adults commonly
experience limited decision-making ability – intellectual disability, mental
illness, dementia, acquired brain injury, and inability to communicate.
The chapter discusses the shift from a medical to a social model of disability
which places the emphasis on ability rather than disability. This chapter
also locates a review of the law on capacity against the backdrop of relevant
constitutional and human rights considerations.
7.
Chapter 2, “Legal
Capacity: Towards a Functional Approach”, reviews salient features of the
debate on the status, outcome and functional approaches to capacity. The
chapter favours the “functional” approach to capacity which assesses an
individual’s capacity in a manner which is both issue-specific and
time-specific. Intrinsic to this approach is an understanding that the
fact that a person has a disability should not lead to an assumption that they
lack the legal capacity to make a particular decision.
8.
Chapter 3, “Legislative
Reform”, recommends the enactment of capacity legislation in order to provide a
coherent uniform set of principles to govern the determination of legal
capacity in a wide range of different situations. Recommendations are
made in relation to how capacity should be defined. These recommendations
are designed to pave the way for the establishment of a legislative substitute
and assisted decision-making scheme for adults who lack capacity as recommended
by the Commission in the Consultation Paper on Law and the Elderly.
9.
Chapter 4, “Review of
Existing Mechanisms to Address Loss of Capacity”, reviews wardship and enduring
powers of attorney, the existing legal mechanisms which are designed to address
lack of capacity. It focuses on the need for appropriate procedural
safeguards in relation to making a determination as to whether a person has
legal capacity.
Part
B
Specific Areas of Decision-Making
10.
Chapter 5, “Capacity to
Contract”, deals with the discrete area of the law relating to the capacity of
an adult with limited decision-making ability to enter into everyday
contracts. There is a need for a balance to be struck in the law between
the goal of facilitating persons with limited decision-making ability to live
their lives as independently as possible, and the countervailing need to
protect both vulnerable adults, and also, good faith suppliers who do not
suspect that a customer does not appreciate the implications of a transaction.
11.
Chapter 6, “Personal
Relationships”, deals with issues surrounding capacity to enter
relationships. This includes a consideration of capacity to enter sexual
relationships and capacity to marry. The chapter also contains an
overview of the subject of non-consensual sterilisation of people with
intellectual disabilities.
12.
Chapter 7, “Healthcare
Decisions”, concerns the capacity to give informed consent or to decline to
consent to proposed treatment. It considers the practical and legal
difficulties which arise where an adult is considered not to have the required
capacity to make the decision. The chapter recommends that capacity
legislation should provide the Minister for Health with the power to set up a
working group to produce guidelines for medical professionals in relation to
capacity issues relating to healthcare decisions.
Report
13.
This Consultation Paper
is intended to form the basis for discussion and accordingly the
recommendations made are provisional in nature. Following further
consideration of the issues and consultation with interested parties, the
Commission will make its final recommendations in respect of this Consultation
Paper on Vulnerable Adults and the Law: Capacity and the Consultation
Paper on Law and the Elderly (CP23-2003) in the form of a Report on
Vulnerable Adults and the Law. Submissions on the provisional
recommendations contained in this Consultation Paper are welcome. In
order that the Commission’s final report on Vulnerable Adults and the Law may
be made available as soon as possible, those who wish to do so are requested to
send their submissions in writing by post to the Commission or by email to info@lawreform.ie by
31 August 2005.
PART
A
the concept of capacity
Chapter 1
capacity in context
A
Introduction
1.01
In general terms, a person’s capacity refers to their ability to perform
a given task. A vulnerable adult may be capable of buying groceries but
may not have the capacity to appreciate what is involved in getting a bank
loan. In a legal context, capacity is used to refer to a person’s ability
in law to make a decision with legal consequences. Capacity, in the legal
sense, is a threshold requirement for persons to have the power to make
enforceable decisions for themselves. It has been said that capacity is
“the pivotal issue in balancing the right to autonomy in decision making and
the right to protection from harm.”[9] The
issue of adult legal capacity can arise in a wide range of everyday situations
such as buying a car, making a will,[10] deciding to
get married and making a decision on whether to have an operation recommended
by a doctor. The courts have developed different tests for capacity in
separate contexts; a finding that a person lacks capacity in one context will
not necessarily lead to the same finding in another context.
1.02
This Consultation Paper is concerned with considering how legal capacity
is defined and applied in a number of major areas in which decision-making
capacity may arise for adults.[11] In
focusing on legal capacity issues, this Consultation Paper examines how the law
currently deals with the decision-making ability of vulnerable adults and makes
recommendations for reform. The recommendations in this Consultation
Paper are designed to complement the provisional recommendations in the
Commission’s Consultation Paper on Law and the Elderly concerning the
establishment of a new framework for the appointment of substitute
decision-makers on behalf of adults who lack capacity.[12]
1.03
Part B of this Chapter outlines the circumstances in which adults
commonly experience a lack of decision-making capacity. Part C considers
the changing perceptions of disability in Ireland which reflect a global shift
in thinking away from a medical model towards a social understanding of
disability. Part D puts capacity issues in the context of relevant human
and constitutional rights.
B
Limits on Decision-Making Ability
1.04
To be autonomous and capable of self-determination is a large part of
what humans cherish in terms of liberty and independence. Part of being
an adult is the right to make decisions independently, although in reality many
of us make them interdependently by consulting with friends and family.
As we are all unique individuals, each person’s decision-making ability is
different. An individual’s decision-making ability may vary depending on
factors such as the nature and consequences of the decision to be made, the
person’s intellectual ability, relevant knowledge and experience, psychological
factors and external factors such as the time frame in which the decision needs
to be made.
1.05
However, some adults have a decision-making ability which is permanently
or temporarily limited so that they may not have the capacity to make certain
decisions. Most commonly an adult with limited decision-making ability
may have an intellectual disability, some form of dementia, mental illness,
acquired brain injury or an inability to communicate their decisions. It
is these vulnerable adults with whom this Consultation Paper is largely
concerned.
(1)
Intellectual Disability
1.06
There is no universally accepted definition of intellectual disability.[13] One
definition is “the presence of a significantly reduced ability to understand
new and complex information and to learn new skills (impaired intelligence),
with a reduced ability to cope independently (impaired social functioning).”[14]
Although the term ‘intellectual disability’ (or ‘learning disability’) is
generally used with reference to a greater than average difficulty in learning,
within that frame the term is applied to describe people within a very wide
range of ability. With intellectual disability, the spectrum of
disability extends from people with mild difficulty in learning to those with
more profound disabilities. Some adults with an intellectual disability
lead independent lives within the community while some are entirely dependent
on others and require intensive levels of care and support. [15]
Thus while some adults with an intellectual disability reside in an independent
or semi-independent setting with the ability to make important decisions for
themselves or in consultation with others,[16]
other individuals have limited scope to exercise personal autonomy in their
daily lives. The decision-making capacity of adults with intellectual
disability may depend in part on factors such as their experience of and
opportunities to make or participate in decisions relevant to their life.
1.07
The National Intellectual Disability Database was established in 1995 to
provide information to the Department of Health, the health services and
voluntary agencies providing service to persons with intellectual disability
and their families. The database contains information on every person
with an intellectual disability who is receiving a service connected to their
intellectual disability or who requires or is expected to require such a
service. There were 25,557 people registered in the National Intellectual
Disability Database in 2003[17] representing
a prevalence rate of intellectual disability of 6.52 per 1,000 population. 36.5%
of cases in 2003 were classified as mild, 37.4% as moderate, 15.6% as severe
and 4.2% as profound.[18] For
the 17,006 adults aged 20 and above on the National Intellectual Disability
Database in 2003, 7,556 lived in a home setting, 510 lived independently, 199
lived semi-independently and 7,681 were resident in a residential centre, group
community home or other full-time facility. 11 were of no fixed abode.[19]
(2)
Dementia
1.08
Dementia is an umbrella term used to describe a collection of symptoms
caused by degenerative changes in the brain characterised by the loss of
cognitive and social function and behavioural changes that affect ability to
think, speak, reason, remember and move. Having a form of dementia does
not in itself mean that a person will not have the capacity to make decisions
and manage their affairs. However, as the illness progresses their
memory, comprehension and judgement may be affected, and consequently their
decision-making capacity in some or many areas may be impaired.[20]
1.09
It is estimated that approximately 33,000 people in the Republic of
Ireland have dementia, most of whom have Alzheimer’s Disease, the most common
cause of dementia which represents about 60% of all cases.[21]
Persons with Parkinson’s disease and Huntingdon’s disease may develop dementia
late in the disease. With persons suffering from a degenerative illness,
the decline in capacity may be gradual and the extent difficult to pinpoint.
1.10
The incidence of dementia increases with age. The National Council
of Ageing and Older People has projected that by 2021, the percentage of older
males will have risen from 9.7% in 2002 to between 13.9 % and 14.1 % while the
percentage of older females will have risen from 12.5 % in 2002 to between
15.8% and 16.4%.[22] As a
result the number of adults with some form of dementia is also likely to
increase.
(3)
Mental Illness
1.11
A person suffering from mental illness experiences severe and
distressing psychological symptoms to the extent that normal functioning is
seriously impaired, and some form of help is usually needed for recovery.[23]
The Mental Health Act 2001, which is designed to deal with
involuntary psychiatric admissions,[24] describes
mental illness for the purposes of the legislation as:
“a state of mind of a person which affects the
person’s thinking, perceiving, emotion or judgment and which seriously impairs
the mental function of the person to the extent that he or she requires care or
medical treatment in his or her own interest or in the interests of other
persons.”[25]
1.12
The cause of mental illness is a widely debated subject on which there
is no clear consensus. Social, biological and psychological factors may
all play a part.[26] The
positive promotion of mental well-being is expected to form a key aspect of the
national policy framework for mental health services which is being produced by
the Expert Group on Mental Health Policy.[27]
Common types of mental illness include depression, bipolar disorder (formerly
referred to as manic depression) and schizophrenia. A person may
experience mental illness on a once-off basis or it may be experienced on an
episodic or cyclical basis in which a period of mental illness is followed by a
period of remission. The spectrum is wide in terms of the effect on the
individual. For some people the illness may be enduring and without
remission. While undergoing an episode of mental illness, a person’s
cognitive functioning may be impaired and they may find it difficult to make
decisions or to carry them through. Alternatively, the person may make
inappropriate decisions which they would not make when they were well.
1.13
There is little centralised data available on the prevalence of mental
illness in Ireland.[28] Such
information as is available tends to be based on admissions to hospitals.
There were 23,234 in-patient admissions to psychiatric hospitals in Ireland in
2003.[29]
However, many persons suffering from mental illness do not require
hospitalisation and may be treated by their medical practitioner who may
prescribe medication and/or counselling. Others do not seek professional
help. It is therefore difficult to calculate accurately the prevalence of
mental health problems in Ireland but the figure of ‘one in four’ is regularly
cited as a guesstimate of the proportion of people who will experience mental
illness in their lifetime.[30]
(4)
Acquired Brain Injury
1.14
Acquired brain injury is a non-progressive injury to the brain which
occurs after birth. An acquired brain injury can occur in a variety of
different situations. The injury may arise due to trauma in an accident,
or as a result of a stroke, brain haemorrhage or brain surgery. Headway
Ireland, the national head injuries association, estimates that more than
10,000 people sustain a brain injury annually and more than 7,000 suffer a
stroke.[31]
1.15
An acquired brain injury may impact on a person’s capacity since
cognitive functioning may be affected through difficulties in concentrating,
communicating, memory problems and problems in relation to reasoning and other
executive or planning functions.[32] The
level of recovery varies depending on the individual case and will depend on
factors such as the type and severity of the head injury and its medical
management including the provision of occupational therapy.[33]
(5)
Inability to Communicate Decisions
1.16
A person who is unable to communicate their wishes is unable to
participate in a decision which requires an action by another person. In
this instance the person’s cognitive ability may be unaffected but they are
unable to communicate their views in a manner which can be understood. A
lack of fluent speech or ability to write will not be a bar to communicating
with other people if other methods of non-verbal communication are possible.
1.17
People who have suffered a stroke may suffer from speech impairment
where the fluency of speech is lost. It may be possible for a speech
therapist to assist in formulating a means of communication.[34]
‘Locked-in syndrome’ is a rare neurological disorder characterised by complete
paralysis of voluntary muscles in all parts of the body except for those which
control eye movement. Individuals with locked-in syndrome are conscious
and can think and reason but are unable to speak or move although communication
may be possible with blinking eye movements.
1.18
A person will be unable to communicate their wishes if they are
unconscious on a temporary or lasting basis.
C
Changing Perceptions of Disability
(1)
Move from a Medical Model to a Social Model
The effects on surrounding brain tissue that may result from
a stroke, brain haemorrhage or brain surgery.
1.19
One of the challenges which a review of the law on capacity presents is
to achieve an appropriate balance between the traditional focus on protection
for the vulnerable and the ideological shift in disability policy towards an
emphasis on autonomy, capacity and empowerment.[35]
1.20
A fundamental shift has been taking place away from a medical model of
disability towards a social and rights-based model.[36] The
medical model of disability focuses on impairment from a medical perspective.
The alternative social or human rights model focuses on the dignity of the
human being and on issues of integration. The goal of the human
rights-based model is to build an inclusive society which respects the dignity
and equality of all human beings regardless of difference. The move from
a medical to a social model of disability entails a corresponding emphasis on
ability rather than disability.
1.21
Allied with the change from a medical to a social model of disability is
a gradual, less discernible shift away from what may be termed “benign
paternalism”. Benign paternalism treats adults who are deemed to lack
capacity as similar to children in the sense of the parent deciding what is
best for them because they know best. The force of paternalism is
undermined by a growing recognition that all adults, including those living
with a disability, have a right to autonomy and self-determination.
1.22
The Commission on the Status of People with Disabilities published a
seminal report in 1996 which was designed to be a blueprint for the removal of
barriers facing people with disabilities in Irish society.[37] The
report noted the move away from a medical model of disability to a social
model.[38] The
Commission on the Status of People with Disabilities stated:
“Unfortunately,
the way in which the law presently defines and constitutes people with
disabilities frequently uses archaic and offensive language, relies heavily on
a medical concept of disability; and reinforces the dependency and stigma
associated with disability.” [39]
1.23
Following on from the recommendations of the report of the Commission on
the Status of People with Disabilities, the National Disability Authority (“the
NDA”) was established by the National Disability Authority Act 1999 as
an independent organisation to promote the rights of people with disabilities.[40]
(2)
Recent Legislative Developments
1.24
In recent years there have been a number of legislative developments in
the disability sector promoting the interests of vulnerable adults. These
include the Employment Equality Acts 1998 to 2004, the Equal Status
Acts 2000 to 2004[41] and the Mental
Health Act 2001. The most significant recent development in
disability law in Ireland is the publication of the Disability Bill 2004.[42]
The 2004 Bill is part of a National Disability Strategy launched in September
2004. In the Second Stage debate on the Bill in the Dáil, Mr Frank Fahey,
the Minister of State at the Department of Justice, Equality and Law Reform
stated:
“The
[national disability] strategy represents a commitment by Government to drive
forward a significant evolution in policy and provision for people with
disabilities, which has gathered momentum in recent years. Among the
established building blocks are the strong anti-discrimination framework of
employment equality[43] and equal
status legislation,[44] the policy
of mainstreaming for people with disabilities in recent years.[45]
These notable milestones set the context for the national disability strategy
and the Bill.”[46]
1.25
The Disability Bill 2004 provides for an entitlement of
persons with a disability to an assessment of need which will result in the
compilation of a services statement listing the services they require.[47]
The Comhairle (Amendment) Bill 2004 is designed to give Comhairle a role
in relation to the introduction of a personal advocacy service specifically
aimed at people with disabilities.
D
Capacity and Human Rights
1.26
A finding that a person lacks capacity results in the restriction or
removal of fundamental human rights. In this sense the issues of capacity
and rights are inextricably linked.[48]
These human rights include the right to equality and non-discrimination; the
right to bodily integrity; the right to protection of the person; the right to
personal liberty; family rights; the right to personal and marital privacy; the
right not to be subjected to inhuman and degrading treatment and property
rights. Human dignity is at the core of the concept of human
rights. Indeed, in a more general sense, if one accepts that the focus of
human rights is generally about increasing autonomy then the connection between
the two issues becomes even more apparent. There
are a great many human rights instruments which apply directly or indirectly to
persons with intellectual disability and mental illness.[49]
(1)
Constitutional Considerations
(a)
Constitutional rights unaffected by lack of capacity
1.27
The fact that an adult has a partial, more serious, or even complete
lack of decision-making capacity does not entail a corresponding loss of
constitutional rights on their part. Under Article 40.3.1° of the
Constitution the State is charged with protecting from unjust attack “as best
it may” and vindicating “the life, person, good name and property rights of
every citizen.” The Supreme Court decision in In re a Ward of Court
(No.2)[50]
concerned the withdrawal of artificial feeding and nutrition from a woman who
had been in what was termed ‘a near persistent vegetative state’ (PVS) for more
than 20 years arising from complications following a gynaecological
operation. Hamilton CJ stated:
“The
loss by an individual of his or her mental capacity does not result in any
diminution of his or her personal rights recognised by the Constitution,
including the right to life, the right to bodily integrity, the right to
privacy, including self-determination,[51] and the
right to refuse medical care or treatment. The ward is entitled to have
all these rights respected, defended, vindicated and protected from unjust
attack and they are in no way lessened or diminished by reason of her
incapacity.”[52]
(b)
Constitutional Rights relevant to Capacity Issues
(I)
Privacy
1.28
To the extent that the law on capacity impacts on the autonomy of
individuals to make choices in relation to how to live their lives, the
constitutional right to privacy is relevant. The right to privacy has been
described as “the right to be let alone”[53]
and this understanding carries with it an aspect of freedom and autonomy.
Although the citizen’s constitutional right to privacy may be interfered with
where the common good requires it, the full scope of privacy law has yet to be
explored under Irish constitutional law. [54]
1.29
The right to privacy has been recognised by the courts as an
unenumerated right[55] guaranteed
by Article 40.3.1° of the Constitution. The Supreme Court in Norris v
Attorney General[56] held that a right to privacy inheres in each citizen as
an unenumerated right under Article 40.3.1° of the Constitution. Henchy
J’s formulation of the scope of the right was broad. He stated that the
right of privacy could be taken to refer collectively to “a complex of rights
which vary in nature, purpose and range (each necessarily being a facet of the
citizen’s core of individuality within the constitutional order)”.[57]
In Kennedy v Ireland[58] Hamilton
P treated the right of privacy as an unenumerated personal right flowing from
“the Christian and democratic nature of the State” and referred to its role in
ensuring “the dignity and freedom of an individual in a democratic society.”[59]
He went on to state that it is not an unqualified right - the exercise of the
right to privacy may be “restricted by the constitutional rights of others, or
by the common good, and it is subject to the requirements of public order and
morality.”[60]
(II)
Dignity
1.30
An underlying tenet of democracy is respect for human dignity.[61]
In the present context, the dignity of the individual is central to any
consideration of capacity issues.
1.31
The right to respect for dignity is not specified as a fundamental right
in the Constitution but the Preamble to the Constitution states that an
objective of the Constitution is to promote the common good so that the
“dignity and freedom of the individual may be assured.” In McKinley v
Minister for Defence[62] Hederman J stated that Articles 40 and 41 of the
Constitution should be construed in accordance with the Preamble to the
Constitution in order that “the dignity and freedom of the individual might be
assured.” In Re a Ward of Court (No.2)[63] Denham J stated “[a]n unspecified right under the
Constitution to all persons as human persons is dignity – to be treated with
dignity.” This approach was also evident in McKechnie J’s judgment in Foy
v An t-Ard Chlaraitheoir[64] where he concluded that the State must accord the right
to dignity the same entitlement as the right of privacy.[65]
(III)
Equality before the Law
1.32
Respect for human dignity is also evident in the equality guarantee in
Article 40.1.[66]
The courts have regarded Article 40.1 as having its basis in human dignity.[67]
However, in considering legal capacity issues it is important to note that the
guarantee of equality contained in Article 40.1 is not absolute. Article
40.1 provides that equality before the law “shall not be held to mean that the
State shall not in its enactments have due regard to differences of capacity,
physical and moral, and of social function”. Thus involuntary psychiatric
detention under the Mental Treatment Act 1945 was upheld in In re
Clarke.[68] In
that case O’Byrne J stated:
“The
existence of mental infirmity is too widespread to be overlooked, and was, no
doubt, present to the minds of the draughtsmen when it was proclaimed in
Article 40.1 of the Constitution that, though all citizens, as human beings,
are to be held equal before the law, the State may have regard to difference of
capacity, physical and moral, and of social function.” [69]
1.33
Although legislation may have regard to differences in capacity, it must
not create what amounts to invidious discrimination.[70]
Furthermore, under the principle of proportionality, a distinction may be
unconstitutional if it is excessive.[71] Both
the Employment Equality Acts 1998 to 2004 and the Equal Status
Acts 2000 to 2004[72] prohibit discrimination on the grounds of disability.[73]
Article 40.3.2° provides that the State shall, in particular, by its laws
protect from unjust attack “as it best it may” and vindicate the life, person,
good name and property rights[74] of every
citizen.
(2)
Council of Europe
(a)
The European Convention on Human Rights
1.34
The Council of Europe Convention for the Protection of Human
Rights and Fundamental Freedoms[75] (“ECHR”)
sets out a comprehensive listing of civil and political rights. Of
particular relevance to legal capacity are Article 8, which concerns respect
for private and family life,[76] and Article
12, which concerns the right to marry and found a family.[77]
Article 14 of the ECHR provides that the enjoyment of the rights and freedoms
set out in the ECHR shall be without discrimination on any grounds.[78]
The European Court of Human Rights has stated on several occasions that it
regards the ECHR as a living instrument which will be interpreted in light of
changing social attitudes.[79]
1.35
The ECHR is binding on Ireland but does not form part of domestic
law. Rather than directly incorporating the Constitution into domestic
law, the European Convention on Human Rights Act 2003 (“ECHR Act 2003”)[80]
adopted a model of interpretative incorporation. Section 2(1) of the ECHR
Act 2003 requires the courts to interpret and apply legislation and rules of
law in so far as possible in a manner compatible with the ECHR and section 4
requires “judicial notice” to be taken of relevant case law of the European
Court of Human Rights. Section 3(1) requires “every organ of State” to
perform its functions in compliance with the ECHR. Nevertheless it is
clear that the ECHR Act 2003 is subject to the primacy of the Constitution.[81]
1.36
Section 5 of the ECHR Act 2003 permits a court to make a declaration of
incompatibility stating that a statutory provision or rule of law is
incompatible with the State’s obligations under the ECHR. However, a
declaration of incompatibility “shall not affect the validity, continuing
operation or enforcement of the rule in question.” Under section 3(2) a person
who has suffered loss, injury or damage as a result of breach of section 3(1)
of the ECHR Act 2003 may, if no other remedy in damages is available, seek to
recover damages following a declaration of incompatibility being obtained in
the High Court.
(b)
Council of Europe Recommendation on the Legal Protection of Vulnerable
Adults
1.37
The Council of Europe has the power to adopt Recommendations directed to
Member State governments in relation to policy formulation.
Although such Recommendations are not legally binding, they would be regarded
as indicative of best practice in the particular area. In 1999 the
Council of Europe adopted a recommendation in relation to the legal protection
of vulnerable adults (“the Recommendation”).[82]
1.38
The text of the Recommendation emphasises the fundamental principle of
respect for the dignity of each person as a human being. Principle 2(1)
of the Governing Principles set out in the Recommendation requires a flexible
legal approach to capacity. Principle 2(1) states:
“The
measures of protection and other legal arrangements available for the
protection of the personal and economic interests of incapable adults should be
sufficient, in scope or flexibility, to enable a suitable response to be made
to different degrees of incapacity and various situations.”
1.39
Principle 3 of the Governing Principles set out in the Recommendation is
concerned with maximum preservation of legal capacity:
“1.
The legislative framework should, so far as possible, recognise that different
degrees of incapacity may exist and that incapacity may vary from time to
time. Accordingly, a measure of protection should not result
automatically in a complete removal of legal capacity.
2.
In particular, a measure of protection should not automatically deprive the
person concerned of the right to vote, or to make a will, or to consent to any
intervention in the health field, or to make decisions of a personal character
at any time when his capacity permits him or her to do so.
3.
Consideration should be given to legal arrangements whereby, even when
representation in a particular area is necessary, the adult may be permitted,
with the representative’s consent, to undertake specific acts or acts in a
specific area.
4.
Whenever possible the adult should be enabled to enter into legally effective
transactions of an everyday nature.”
(3)
United Nations
1.40
Article 1 of the United Nations organisation’s 1948 Universal
Declaration of Human Rights states: “All humans are born free and equal in
dignity and rights.” [83] In 1990 Ireland became a party to
the International Covenant on Civil and Political Rights (ICCPR)[84]
which proceeds on the basis of a recognition in the Preamble of the inherent
dignity and equality of individuals. Ireland also became a party to the International
Covenant on Economic, Social and Cultural Rights[85]
in 1990.
(a)
Declaration on the Rights of Mentally Retarded Persons
1.41
In 1971 the General Assembly of the UN adopted a Declaration on the
Rights of Mentally Retarded Persons[86] which
emphasises the goal of the development of ability and social integration.
Article 1 sets out that persons with severe mental illness or intellectual
disabilities have, to the maximum degree of feasibility, the same rights as
other human beings. The Declaration requires that any restriction on
rights must be subject to appropriate legal safeguards to prevent abuse.[87]
(b)
Resolution on Principles for the Protection of Persons with Mental
Illness
1.42
In relation to establishing a lack of legal capacity, the General
Assembly Resolution on Principles for the Protection of Persons with Mental
Illness 1991 states:
“Any
decision that, by means of his or her mental illness, a person lacks legal
capacity, and any decision that, in consequence of such incapacity, a personal
representative shall be appointed, shall be made only after a fair hearing by
an independent and impartial tribunal established by domestic law. The
person whose capacity is at issue shall be entitled to be represented by a
counsel ….”[88]
(c)
Older Persons
1.43
In relation to older persons, both the 1982 International Plan on
Ageing[89] and the United
Nations Principles for Older Persons, 1991[90] emphasise the principles of independence, participation,
self-fulfilment and dignity.
(d)
Draft UN Disability Convention
1.44
Progress has been made towards the adoption of a UN Disability
Convention.[91] This
would follow the trend in other UN treaties towards particular protection of a
group.[92] In
2001 the General Assembly adopted a resolution on a “Comprehensive and integral
international convention to promote and protect the rights and dignity of
persons with disabilities”.[93] In
January 2004, a draft version of the Convention was produced by the Ad Hoc
Committee on the Protection and Promotion of the Rights and Dignity of Persons
with Disabilities.[94] The
review process is ongoing.
(4)
The EU Charter of Fundamental Rights
1.45
The Charter of Fundamental Rights for the European Union was
agreed in 2000 as part of the ‘Nice Treaty’.[95]
It includes all the rights covered by the European Convention on Human
Rights including respect for human dignity,[96]
and respect for physical and mental integrity.
E
Conclusions
1.46
The Commission is concerned that the law on capacity should reflect
changing perceptions of disability as outlined in this chapter. The law
should thus be framed to reflect an emphasis on capacity rather than lack of
capacity and should be enabling rather than restrictive in nature. In
this way, any legislative scheme addressing capacity will be more likely to
comply with relevant constitutional law and international human rights
standards in this area.[97]
1.47
The Commission recommends that the law on capacity should reflect an
emphasis on capacity rather than lack of capacity and should be enabling
rather than restrictive in nature, thus ensuring that it complies with relevant
constitutional and human rights standards.
2.
Chapter 2
legal capacity: towards a functional approach
A
Introduction
2.01
As will have been apparent from the discussion in Chapter 1, issues of
legal capacity have far-reaching practical consequences in everyday life.
They are therefore of immediate concern in relation to adults with limited
decision-making ability,[98] their carers
and other people with whom they come into contact.
Before examining the legal rules which govern a person’s legal capacity in Part
C of this chapter, it is instructive to turn our attention first in Part B to
the debate on how the concept of capacity itself should be understood.
This chapter sets the scene for the more detailed review of legal capacity in
selected areas of decision-making in the chapters which follow.
B
The Debate on Capacity
2.02
The discussion on approaches to capacity in this Part will inform the
later discussion in this Consultation Paper of the appropriate legal
understanding of capacity, particularly where an adult’s decision-making
capacity is in some way limited. Discussion on how capacity should be
understood has for the most part arisen in medical ethics jurisprudence
concerning consent to medical treatment and research. However, more
recently there has been increasing interest in the question of how legal
capacity should be understood within the context of the search for a substitute
decision-making model for adults who lack capacity.[99]
2.03
The major capacity models, known as the ‘status approach’, the ‘outcome
approach’ and the ‘functional approach’ are considered below. The lines
between the different approaches to capacity are often blurred in
practice.
(1)
The Status Approach
2.04
The status approach to capacity involves making a decision on a person’s
legal capacity based on the presence or absence of certain
characteristics. It usually involves an across-the-board assessment of a
person’s capacity based on disability rather than capacity in relation to the
particular decision being made at a particular time. Under this approach,
for example, a person who is on a long-stay psychiatric ward may be
automatically denied capacity to make a will or to vote without regard
to their actual capabilities.
2.05
The effect of a status approach is illustrated by the Canadian case Clark
v Clark.[100] The
case concerned a 20 year old man with cerebral palsy and an intellectual
disability who had been living in a residential centre from the age of
two. He had a severe physical disability, used a wheelchair and could not
speak. However, he had learned to communicate through a system known as
Blissymbols. Arrangements were made for him to visit several L’Arche placement
homes as a first step to a possible move on from the residential centre.
He was keen to do so and signed a consent form to the trip. However,
because his parents objected to the trip and any future transfer to a placement
home, the trip was cancelled. The father feared that his son could not
cope outside the centre and applied for a declaration that his son was a
mentally incompetent person.
2.06
Matheson J held that the son’s obvious and severe physical disability
was irrelevant to a determination of his mental capacity. The judge was
satisfied that the young man was able to communicate effectively, was fully
aware of his surroundings and knew what he wanted. He was entitled to
take a risk by deciding to try living in a placement home. In effect, the
court rejected a status approach, which looked only at the severe disability,
and looked instead at the capacity to make the particular decision at issue.
2.07
The status approach to capacity is evident in the Wards of Court system[101]
and in respect of enduring powers of attorney under the Powers of Attorney
Act 1996,[102] both of
which make a broad assessment of general legal capacity which amounts to making
a status decision on capacity.
2.08
A status approach to capacity has particular potential to operate
inequitably in relation to persons whose capacity fluctuates, for example,
persons who have long periods of capacity alternating with shorter
periods where cognitive ability is significantly impaired by an episode of
mental illness. This was acknowledged by the Commission in its Seminar
Paper on Law and Elderly.[103]
2.09
The status approach was rejected by the Law Commission of England and
Wales in its Report on Mental Incapacity as being “out of tune with the
policy aim of enabling and encouraging people to take for themselves any
decision which they have capacity to take.”[104]
2.10
Despite the obvious shortcomings of assessing an individual’s capacity
based on a once-off look at their status generally, any criticism of such an
approach is subject to the caveat that in practice there will be cases where a
person does not have the cognitive ability required to make any decisions with
legal consequences for themselves. This will arise, for example, where a
person is in what is known as a persistent vegetative state[105] or coma,
or where dementia has advanced to such an extent that decision making ability
is minimal and there is no prospect of regaining lost capacity. In such circumstances the requirement to make a fresh assessment of
capacity every time a matter arises which requires a decision may be regarded
as unnecessary.[106]
(2)
The Outcome Approach
2.11
The outcome approach makes a decision on an individual’s capacity based
on an assessment of the consequences of their decision-making choices.[107]
The result of the choice is regarded as an indicator of the person’s
capacity. Under this standard, a person who makes a decision that
reflects values which are not widely held or which rejects conventional wisdom
is found to lack capacity.[108] This
necessarily involves superimposing subjectivity and rationality in making the
relevant analysis. Under this approach, in the area of healthcare
decisions,[109] if a
patient rejects a doctor’s recommendations, the danger is that there will be a
greater tendency to find that they lack capacity.
2.12
The Law Commission of England and Wales did not favour this approach to
capacity on the basis that it “penalises individuality and demands conformity
at the expense of personal autonomy.”[110]
Although the outcomes of a decision may provide information on a person’s
understanding or lack of understanding, the outcome should not be conclusive of
capacity. This was the approach taken by the Court of Appeal in the
leading English case on legal capacity Masterman-Lister v Brutton & Co.[111]
2.13
An illustration of circumstances where there may be a predisposition
towards an outcome approach is found in the English High Court decision in Re
C (Adult: Refusal of Medical Treatment).[112]
In that case a 68 year old patient who had paranoid schizophrenia and was
serving a term of imprisonment developed gangrene in his foot. The surgeon’s
view was that he was likely to face imminent death if his leg was not amputated
below the knee. The patient’s view was that he would rather die with two
feet than live with one. At trial the judge found that the patient was
suffering from grandiose delusions that he was a doctor but nevertheless had
accepted the possibility of death as a consequence of retaining the limb.
Thorpe J regarded the test for capacity as being whether C’s capacity was so
reduced by his chronic mental illness that he does not sufficiently understand
the nature, purpose and effects of amputation. He concluded that,
although C’s general capacity had been impaired by schizophrenia, it was not
established that he did not sufficiently understand the nature, purpose and
effects of the treatment he refused. C therefore obtained an injunction
preventing amputation by the hospital without his consent. This case
implicitly rejected status and outcome approaches to capacity in favour of a
functional approach.
(3)
The Functional Approach
2.14
A functional model of capacity represents the most widely accepted
modern capacity model and thus merits particular attention in this Consultation
Paper.
2.15
As previously indicated, much of the discourse on the approach to
capacity has arisen in the context of healthcare decisions. In the US, a
major report in this area by the President’s Commission found:
“Decision-making capacity is specific to each
particular decision. Although some people lack this capacity for all
decisions, many are incapacitated in more limited ways and are capable of
making some decisions but not others. The concept of capacity is best
understood and applied in a functional manner. That is, the presence or
absence of capacity does not depend on a person’s status or on the decision
reached, but on that individual’s actual functioning in situations in which a
decision about healthcare is to be
made.” [113]
2.16
In contrast to the status approach, the functional approach to capacity
recognises that legal capacity issues arise in a specific factual context, such
as capacity to make a will,[114] the right
to marry[115] or the
ability to consent to or refuse medical treatment.[116]
Therefore the assessment of capacity should also be narrowed to the particular
decision which needs to be made. The fundamental premise behind a functional
view of capacity is that the fact that a person belongs to a category of people
who are often unable to make decisions for their own wellbeing may open the
possibility of a lack of decisional capacity - but it does not of itself
resolve the matter.[117]
Furthermore, an assessment that a person lacks legal capacity in relation to
one decision does not mean that they necessarily lack legal capacity in
relation to a different type of decision. An issue-specific, ‘functional’
approach to capacity[118] assesses a
person’s capacity to make a particular decision. As a result the
conception of capacity is in direct contrast to the all-or-nothing approach to
capacity which tends to prevail under the status approach. Furthermore,
the individual assessment of capacity which characterises the functional
approach has the resulting benefit of involving a proportionate, minimum
incursion on an individual’s decision-making autonomy.
2.17
The application of the functional approach’s issue-specific
understanding of capacity is evident in Re Beaney.[119]
This case concerned the validity of the transfer by a woman suffering
from advanced senile dementia of her home to her daughter as a gift.[120]
Martin Nourse QC, sitting as a deputy judge of the Chancery Division, stated:
“The
degree or extent of understanding required in respect of any instrument is
relative to the particular transaction which it is to effect. In the case
of a will the degree required is always high. In the case of a contract,
a deed made for consideration or a gift inter vivos, the degree varies
with the circumstances of the transaction.” [121]
It
was held that the woman was not capable of understanding, and did not
understand, that she was making an absolute gift of the property to her
daughter when she signed the deed of transfer.
2.18
Another example of the diverse understanding of decision-making inherent
in the functional model is Park v Park.[122]
In this case a man of advanced years who married and executed a will on
the same day was found to have had the capacity to marry but to have lacked the
capacity to make a will.
2.19
A further aspect of a functional approach is that, both legally and
conceptually, capacity is not treated as fixed for all time. Instead
capacity is envisaged as time-specific as well as issue-specific. As noted by
the Law Commission of England and Wales in its Report on Mental Incapacity[123] “most people, unless in a coma, are able to make at
least some decisions for themselves and may have levels of capacity that vary
from week to week or even from hour to hour”.
2.20
Capacity legislation enshrining the so-called functional approach to
capacity was recommended by the Law Commission of England and Wales.[124]
The subsequent paper of the then Lord Chancellor’s Department Making
Decisions described the practical effect of the functional approach in the
following terms:
“This
approach … avoids generalisations which may involve unnecessary intrusion in
the affairs of the individual. For example, a person may be able to
decide that they want to have contact with a particular relative, but may not
be able to understand the nature of a particular financial contract on which a
decision is needed. The functional approach would indicate that the first
decision is one for which the person had capacity, whereas the second decision
is one for which s/he did not. The approach thus allows the maximum
decision-making powers possible.” [125]
2.21
In reflecting on the proposed content of a Mental Capacity Bill for
England and Wales, the UK Government accepted the importance of
recognising the issue of “general incapacity” within the context of a primary
endorsement of the functional approach to capacity.[126]
Similar reservations were expressed by the current Master of the Court of
Protection of England and Wales in his comment:
“The
Law Commission’s functional approach to capacity is ideally suited for one-off
transactions, such as entering into a contract, making a will or signing a
power of attorney. Such decisions are largely based on understanding the
nature and effect of that particular transaction, but it is less obvious
whether this approach is suitable for the wider, more generic range of
activities in managing one’s property and affairs …”[127]
2.22
The Adults with Incapacity (Scotland) Act 2000 approaches
capacity in a functional manner. In place of a ‘status’ view of capacity,
it introduced a recognition that the capacity which an adult possesses should
be encouraged and safeguarded. The recently Mental Capacity Act 2005 for
England and Wales also adopts a decision-specific, functional approach to
capacity.
2.23
The recent decision of the Court of Appeal in Masterman-Lister v
Brutton & Co[128] entailed a decisive endorsement of a functional, issue-specific
approach to capacity. In this case, the plaintiff was 17 when, in 1980,
he was involved in an accident when his motorcycle collided with a milk float.
As a result he suffered severe brain damage and was unable to continue
his work. A personal injury claim against the driver of the milk float in
respect of the accident was settled 7 years later. However, 6 years after
the settlement the plaintiff decided to sue the solicitors’ firm which had
acted for him on the basis that as he lacked the capacity at the time to manage
his property and affairs, the settlement should have received the approval of
the court.
2.24
At trial, Wright J found that since 1983 at the latest the plaintiff had
been fully capable of managing his property and affairs having made enough of a
recovery from the brain injury.[129]
On appeal to the Court of Appeal, Kennedy LJ referred to the issue-specific
nature of the test for capacity and “the requirement to consider the question
of capacity in relation to the particular transaction (its nature and
complexity) in respect of which the decisions as to capacity fall to be
made.” The Court of Appeal reviewed relevant authorities and concluded
that, in law, capacity depends on time and context. Thus, a decision as
to capacity in one context does not bind a court which has to consider the
issue in a different context. In this case the Court had to consider
whether the plaintiff was capable of understanding, with the assistance of explanations
in broad terms and simple language, the issues on which consent or a decision
would be needed in order to pursue legal proceedings. Kennedy LJ stated
that while the final decision on capacity rests with the court, in almost every
case the court will need medical evidence to guide it. The Court regarded
capacity as requiring:
“the
ability to recognise a problem, obtain and receive, understand and retain
relevant information, including advice; the ability to weigh the information
and advice (including that derived from advice) in the balance in reaching a
decision, and the ability to communicate that decision.” [130]
2.25
The Court of Appeal affirmed the approach of the trial judge, holding
that he had given proper weight to the medical evidence as to the effects of
the head injury. Chadwick LJ stated that although outcomes can reflect
capacity, it is capacity not outcomes which is important. Therefore while
imprudent decision-making does not in itself prove a lack of capacity, it may
raise the issue for consideration. In this light, evidence of the
plaintiff’s loss of a pressure cooker valve and regular overstocking of a
freezer - which was submitted in order to prove that the plaintiff had memory
problems - were viewed by the court as mishaps which could happen to anyone.
2.26
The significance of this case for the law on capacity is
threefold. First it contained a thorough review of the authorities on
legal capacity in different contexts. Secondly, the Court of Appeal held
that a functional approach represents the correct legal approach in making
decisions on legal capacity. Thirdly, in an Irish context, where there is
a dearth of cases on the law of capacity, the decision provides persuasive
authority for this jurisdiction.
C
General Legal Principles on Capacity
2.27
There is no one generally applicable definition of capacity at common
law or in statute. Indeed, there is no single statute governing capacity
issues, and the most frequent references to capacity in Irish law arise in the
context of legislative references to persons “of unsound mind”.[131] The
principles discussed below are gleaned from case law in different contexts in
which capacity issues arise.
(1)
The Legal Presumption of Capacity
2.28
The courts have held in a variety of different contexts[132] that an adult is presumed to have legal capacity unless the
contrary is proved.[133] A
presumption of capacity accommodates fluctuating capacity and lucid intervals
and goes hand in glove with a functional approach to capacity. A
consequence of the presumption of capacity is that the burden of proving a lack
of capacity rests on those who raise it.[134]
2.29
Thus an adult is presumed to have the capacity to consent to medical
treatment,[135] to make a
will (testamentary capacity),[136]
to make a gift[137] and to
manage their own property and affairs.[138]
The level of understanding required will depend on the nature and complexity of
the transaction. Section 18(1) of the Personal Injuries Assessment
Board Act 2003 contains a statutory presumption of capacity in relation to
the claimant and respondent to personal injury claims covered by the
legislation.[139]
2.30
The Scottish Law Commission said of the presumption of capacity:
“Clearly
there must be a presumption of competence and because the degree of
understanding required varies enormously according to the type of legal
transaction involved it is only sensible to consider capacity in relation to
each particular transaction.” [140]
2.31
While there is a general legal presumption of capacity there is no
single definition of capacity which can be applied in all contexts.
(2)
Proving that a Person Lacks Legal Capacity
2.32
Generally speaking, if it is alleged that a person lacks the capacity to
make a decision with legal consequences, the onus of proving this is on the
person who alleges the lack of capacity.[141]
The standard of proof is the usual standard in civil proceedings - proof on the
balance of probabilities.
2.33
Originally at common law, once it had been proved that a person lacked
capacity, a presumption of continuance operated – the lack of capacity was
presumed to continue until the contrary was proved.[142]
However, a presumption of continuance was rejected by the Court of Appeal in Masterman-Lister
v Brutton and Co.[143] In
that case the plaintiff had sustained a head injury in an accident. It
was contended that, where there was evidence that as a result the plaintiff was
incapable of managing his property or affairs for a time, a presumption of
continuance could be relied on to avoid having to prove that he lacked capacity
to manage his affairs at a later stage. This was rejected by the Court of
Appeal. Kennedy LJ stated: “Of course, if there is clear evidence of
incapacity for a considerable period then the burden of proof may be more
easily discharged, but it remains on whoever asserts incapacity.”[144]
Therefore, in all circumstances where incapacity is asserted, it must be
proved.
D
Conclusions
2.34
Any approach by the law to restrict capacity is set against the
background of human rights law and constitutional considerations outlined in
Chapter 1.[145]
In this regard, a core consideration when examining the merits of a particular
model for determining capacity is the impact that its application is likely to
have on the right of an adult to self-determination.[146]
2.35
The Commission approves of Gordon and Verdun-Jones’ characterisation of
capacity and incapacity as “extremes on a continuum.”[147]
It is generally not appropriate for decision-making capacity to be regarded in
stark terms of either being present or absent. A more subtle approach
which accords with a social model of disability is called for.[148]
With this objective in mind, the Commission has reviewed the status, outcome
and functional approaches to capacity.
2.36
Failure to make prudent or sensible decisions should not of itself lead
to a characterisation of a person as lacking capacity since a badge of capacity
is the right to make decisions autonomously in whatever manner one chooses
within the confines of the law. For this reason, the Commission does not
regard the outcome approach to capacity as capable of forming a stand-alone
approach to capacity. In the words of John Stuart Mill:
“There
is no reason that all human existence should be constructed on some one or some
small number of patterns. If a person possesses any tolerable amount of
common sense and experience, his own mode of laying out his existence is best,
not because it is the best in itself, but because it is his own mode.”[149]
2.37
The Commission also considers that the status approach is unsuitable as
a primary approach to capacity because its all-or-nothing conception of
capacity is objectionable for being unnecessarily disabling in effect.
The fact that a person has a disability which commonly means that a person will
not be able to make decisions for themselves may signify a potential lack of
capacity but it should not be decisive of the issue. The Commission is
nevertheless cognisant of the fact that in certain situations a person may have
no decision-making capacity nor any real prospect of gaining capacity in a
particular area of decision-making.
2.38
The Commission therefore favours a predominantly functional approach to
matters of legal capacity. A functional approach would allow
decision-making capacity to be assessed in relation to a particular decision at
the time the decision is to be made. This understanding of capacity
accords with the principle of maximum preservation of capacity articulated in
the Council of Europe’s Recommendation on Principles concerning the Legal
Protection of Vulnerable Adults.[150]
The policy guidelines set out in the Council of Europe Recommendation favour a
flexible approach to capacity which recognises different degrees of incapacity
and the importance of the context in which the question arises. Choosing
the functional approach as the preferred capacity model is also consistent with
the leading English decision on capacity in Masterman-Lister v Brutton &
Co[151] and with recent legislative trends in the area of
capacity in other common law jurisdictions including Scotland’s Adults with
Incapacity (Scotland) Act 2000 and the English Mental Capacity Act 2005.[152]
2.39
While an issue-specific and time-specific functional approach commends
itself as the primary approach to capacity, the Commission notes that in
certain exceptional circumstances where an adult’s lack of capacity is profound
and likely to endure, a new functional determination of capacity in a
particular area of decision-making may be unnecessary every time that class of
decision arises.[153]
2.40
The Commission recommends that a predominantly functional approach
should be taken to the issue of legal capacity. This would
involve consideration of a person’s capacity in relation to the particular
decision to be made at the time it is to be made. The Commission also
recognises that where an adult’s lack of capacity is profound and enduring, a
new functional determination may be unnecessary in every situation in which a
decision has to be made.
3.
Chapter 3
legislative reform
A
Introduction
3.01
A finding that an adult has legal capacity means that they have the
autonomy to make a decision on that particular area of their life. By
contrast, a finding that an adult lacks legal capacity has serious consequences
for their autonomy because such a finding involves limiting their right to
self-determination. Given the implications of a decision on capacity, certainty
and transparency in the law on capacity are important. This chapter
examines the desirability of enacting capacity legislation to provide a
coherent set of principles to govern legal capacity.
3.02
Part B of this chapter considers the benefits of enacting capacity
legislation. Part C examines the appropriate legislative approach.
B
The Potential Role of Capacity Legislation
3.03
There are strong arguments in favour of the enactment of legislation
specifically dealing with legal capacity. These relate particularly to
the role which legislation could play in creating certainty in relation to the
law on capacity and its potential to promote and safeguard the interests of
vulnerable adults.
[154]
3.04
In recent years many countries have enacted legislation to deal with
capacity and substitute decision-making including New Zealand,[155]
territories in Australia,[156] Canada[157]
and Germany.[158]
Other countries are contemplating such legislation.[159]
The Adults with Incapacity (Scotland) Act 2000 was enacted in order to
establish a comprehensive modern scheme to deal with issues of capacity and
substitute decision-making based on a functional understanding of capacity.[160]
It also involved the establishment of a Public Guardian. The Mental
Capacity Act 2005 for England and Wales received the Royal Assent on
7 April 2005.[161] This
legislation has its origins in the work of the English Law Commission in this
area.[162] The
English Law Commission recommended that “[t]he ‘group of holes’ within which
people who lack mental capacity must now exist should be replaced with a
carefully designed and well-constructed legal basket.”[163]
The Mental Capacity Act 2005 was designed to be enabling in nature and,
like the Scottish legislation, is based on a functional understanding of
capacity. The Mental Capacity Act 2005 also establishes a Court of
Protection, which will have jurisdiction in relation to the Mental Capacity
Act 2005, and a Public Guardian.
(1)
Lack of Systematic Guidelines Addressing Legal Capacity
3.05
To date judicial and legislative consideration of legal capacity has
been piecemeal rather than systematic.[164]
Outside a number of discrete areas of decision-making, for example, the
capacity to make a will[165] and ex-post facto judicial analysis of capacity to marry in
the context of nullity cases,[166]
there has been little modern judicial consideration of capacity issues by the
Irish courts.[167] Thus
while in some areas the law on what capacity entails is well-developed, in
other areas such as wardship,[168]
there is a dearth of judicial authorities on the crucial issue of how capacity
should be understood and defined. A consequence of this is a large
measure of legal and popular uncertainty as to (a) the right of adults whose
decision making capacity is limited to make decisions with legal consequences;
and (b) the validity of decisions made on behalf of such adults by parents and
carers.
3.06
It might be argued that capacity issues could continue to be dealt with
by the courts on a case by case basis. However, in the Commission’s view,
there are strong counter-arguments. First, practical hurdles frequently
present themselves in terms of a vulnerable adult being aware of their rights
and having the necessary assistance and legal representation to enforce
them. This means that such cases are likely to remain rare.
Secondly, at a more fundamental level, case law will, in any event, only deal
with specific cases rather than generally applicable principles.[169]
Thirdly, supervisory structures such as an Office of the Public Guardian
can only be put in place by primary legislation.[170]
3.07
The following description of the law in relation to capacity and
substitute decision making, made in relation to the Scottish legal position
prior to the enactment of the Adults with Incapacity (Scotland) Act 2000,
also seems apt in the Irish context:
“The law we have inherited looks like an
archaeological site with an assortment of buildings from various eras in
various states of disrepair, in various degrees unsuitable for modern living,
totally uncoordinated in layout and unstandardised in design, with many
complete gaps and dodgy areas where one can tread only with uncertainty and
trepidation….”[171]
The
equal applicability of these comments to this jurisdiction is apparent from the
review in succeeding chapters of this Consultation Paper of the law on
wardship, powers of attorney, capacity to contract, capacity to enter personal
relationships and capacity to make healthcare decisions.
3.08
The desirability of enacting legislation was recognised by the
Disability Legislation Consultation Group:
“There
is considerable concern about the minimal legal provision for supported
decision-making, informed consent and rights. Separate legislation is
needed to identify the competence of vulnerable adults and particularly adults
unable to make decisions on their own behalf, to provide protection for those
who lack competence.” [172]
Reform on capacity and substitute
decision-making other jurisdictions has been described as follows:
“Increasingly in other jurisdictions the site has
been cleared and a new structure erected, designed to meet modern needs in ways
which accord with modern circumstances, perceptions and values. The best
of these new structures are designed to be effective, efficient, accessible and
user-friendly; clearly laid out and based on consistent application of clear
and important basic principles.”[173]
3.09
As the law stands there is no uniform understanding of capacity which is
applicable in all decision-making contexts. In the Commission’s view, a
clear legislative code would fill this void and would as a consequence reduce
existing legal uncertainty as to how capacity should be conceived. In
particular, the enactment of capacity legislation would offer the opportunity
to put in place a functional understanding of capacity which will inform any assessment
of a person’s legal capacity.[174]
(2)
Promotion of Interests of Vulnerable Adults
3.10
The normative potential for capacity legislation should not be
underestimated. The enactment of capacity legislation would serve to
promote the interests of vulnerable adults who are in danger of having their
rights and interests overlooked or actively disregarded. Legislation
could assist in safeguarding the rights of vulnerable adults by specifically
identifying the right of every adult to have their personal level of decision
making capacity respected and maximised. Legislative embodiment of this
approach would assist in shifting from a medical to a human rights model of
disability.[175] The
enactment of capacity legislation would also provide the opportunity to include
a rights-based framework which would emphasise the importance of working both
to recognise and to maximise the decision-making capacity of adults whose
decision-making ability is limited. It would also permit the
establishment of a systematic structure for dealing with legal capacity issues
as well as facilitating provisions to safeguard the interests of adults with
limited decision-making capacity.
3.11
A finding that a person lacks the capacity to make a decision
immediately raises the issue of who can assist them to make the decision or
make the decision in their place. In this regard this Consultation Paper
and the Consultation Paper on Law and the Elderly[176] should be viewed as two sides of the same coin.
Developing legislative rules on capacity would pave the way for a cohesive
legislative assisted decision-making scheme of the type envisaged in the Consultation
Paper on Law and the Elderly. While this Consultation Paper focuses
on the concept of legal capacity, it is envisaged that the proposed capacity
legislation would also deal with assisted and substitute decision-making and
the recommendations in this area made by the Law Reform Commission in the Consultation
Paper on Law and the Elderly. The structure of the capacity
legislation, including provisions concerning substitute and assisted decision-making
and the establishment of an Office of the Public Guardian recommended in the Consultation
Paper on Law and the Elderly, will be drawn together in the Commission’s
proposed Report on Vulnerable Adults and the Law.[177]
3.12
The Commission recommends the enactment of capacity legislation for
the following reasons:
· Existing
legislative and judicial consideration of capacity matters has been piecemeal
rather than systematic and wide-ranging;
· The
law on capacity should be clear, transparent and accessible;
· Capacity
legislation would permit a coherent uniform legislative understanding of legal
capacity to be put in place which would apply in all situations;
· Capacity
legislation could seek to achieve an appropriate balance between autonomy and
protection by promoting the interests of vulnerable adults;
· Capacity
legislation would also be an appropriate vehicle to deal with the consequences
of a finding of lack of capacity, in particular through making provision for
substitute and assisted decision-making structures of the type envisaged in the
Commission’s Consultation Paper on Law and the Elderly.
C
Legislative Approach
(1)
Structure of Capacity Legislation
3.13
The Commission acknowledges that drafting legislation in the area of
capacity, which affects civil rights, is a complex normative task. The
Commission envisages that legislation in this area would provide a
comprehensive framework which could be structured around provisions which can
be broadly categorised as
(i) provisions
concerning the definition of legal capacity;
(ii) provisions
concerning substitute and assisted decision-making where an adult lacks
capacity including principles to which substitute and assisting decision-makers
must adhere;
(iii) provisions
concerning regulation and supervision.
3.14
Substitute and assisted decision-making where a person lacks capacity,
and the associated regulation and supervision by a Public Guardian were
considered in the Commission’s Consultation Paper on Law and the Elderly.[178] In
keeping with the focus of this Consultation Paper, the remainder of this
chapter examines key issues concerning the development of a statutory
definition of capacity and related issues. The Commission’s proposed
Report on Vulnerable Adults and the Law will draw together all three
aspects. The Report will address the appropriate procedural and
institutional framework to implement the principles contained in this
Consultation Paper and the earlier Consultation Paper on Law and the Elderly.
(2)
Methodology
3.15
The Commission’s view is that where existing common law principles
concerning legal capacity can be restated in any proposed legislation, this
should be done.[179] The
drafting of capacity legislation also provides an important opportunity to make
improvements and adaptations to the law. This is particularly the case
where:
· gaps
in the existing law have resulted in legal uncertainty;
· the
law has not kept pace with contemporary understanding of disability in a manner
which emphasises and promotes capacity;[180]
or
· existing
procedures for determining capacity do not reflect best practice under
administrative and human rights law.[181]
(3)
Terminology
3.16
Much of the terminology traditionally used to describe persons who lack
legal capacity is objectionable and outdated.[182]
The Commission is particularly mindful that terms such as ‘person of unsound
mind’ are inappropriate, objectionable and stigmatising. Furthermore,
such phrases are opaque.[183]
3.17
The Commission on the Status of People with Disabilities stated:
“It
is important that definitions of disability should use language which reflects
the rights of people with disabilities to be treated as full citizens and
included in all aspects of society. All definitions of disability should
be reviewed and inappropriate and inoffensive language replaced. In the
light of the Commission’s view that disability is primarily a social rather
than a medical construct, it is inappropriate that definitions of disability
should rely solely on medical definitions or medical evidence. Finally,
definitions of disability should encourage self-determination and autonomy of
people with disabilities rather than reinforce dependency.” [184]
The Commission endorses this view in the context of
drafting capacity legislation. The Commission therefore concludes that
capacity legislation should be drafted in terms which are enabling rather than
restrictive in nature.
3.18
The Commission recommends that the proposed capacity legislation
should use appropriate terminology to refer to persons who lack legal capacity.
3.19
The Commission recommends that the proposed capacity legislation
should be drafted in terms which are enabling rather than restrictive in
nature.
(4)
A Statutory Statement of Presumed Capacity
3.20
A legal presumption that an adult is capable of making decisions
autonomously is consistent with a social rather than a medical model of
disability.[185]
Indeed, the common law presumption that an adult has capacity[186]
respects the generally held belief that adults are entitled to live in the
manner they wish and to accept or refuse support, assistance or protection so
long as they do not harm others and are capable of making decisions about these
matters. Moreover, the presumption of capacity respects the principle of
minimum intervention. In addition, the presumption of capacity dovetails
well with the functional approach to capacity which this Consultation Paper
favours.[187]
3.21
It is common in other jurisdictions where capacity and
guardianship/adult protection legislation has been enacted for a statutory
statement of the presumption of capacity to be included in the legislation.[188]
In the Canadian province of British Columbia, section 3(1) of the Adult
Guardianship Act RSBC 1996 encapsulates a presumption of capacity which is
drafted to reflect the spectrum in which decision-making arises:
“Until the contrary is demonstrated, every adult is
presumed to be capable of making decisions about personal care, health care,
legal matters or about the adult’s financial affairs, business affairs or
assets.”
3.22
The Law Commission of England and Wales, in recommending capacity
legislation, was of the view that it would be helpful if legislation set out a
rebuttable presumption of capacity.[189]
This has been included in the Mental Capacity Act 2005.[190]
By contrast, the Adults with Incapacity (Scotland) Act 2000
proceeds from the basis of the continuing application of the common law
presumption of capacity in respect of persons over 16[191]
and a general presumption of capacity is not expressly set out in the
legislation.
3.23
Having considered these different approaches, the Commission favours the
inclusion of a statement of a positive presumption of capacity as the
cornerstone of the proposed capacity legislation.[192]
An express statutory statement of the common law evidentiary presumption would
assist in the creation of a clear and certain code in respect of capacity.
Furthermore, a statutory statement of presumed capacity would conform
with the Commission’s belief that any such legislation should be couched in
terms that are enabling rather than restrictive in nature.
3.24
As noted above,[193] the
continued existence of the common law ‘presumption of continuance’ has been put
in doubt by the decision of the English Court of Appeal in Masterman-Lister
v Brutton and Co.[194] The
Commission considers that a presumption of continuance is inconsistent with the
preferred functional, issue-specific and time-specific approach to
capacity. The inclusion of a statutory statement of presumption of
capacity, when combined with a functional approach to the definition of
capacity, should have the effect of removing any doubt in this regard.
3.25
The Commission recommends that the proposed capacity legislation
should set out a rebuttable presumption of capacity to the effect that every
adult is presumed, until the contrary is demonstrated, to be capable of making
decisions affecting them.
(5)
A Statutory Definition of Capacity
3.26
Detailed discussion of specific methodology and tools for undertaking an
assessment of capacity has largely arisen in the particular context of
assessing capacity to make healthcare decisions.[195]
Indeed there is no one uniformly accepted test to assess decision-making
ability.[196]
Rather more consensus exists in relation to the different general approaches
which may be taken to capacity.[197]
3.27
Reflecting the fact that individual capacity cannot be simply captured
by an all-embracing scientific test, recent capacity legislation in other jurisdictions
does not attempt to set out specific methodology for the assessment of
capacity. Rather, the trend is for such legislation to provide a broad
definition of capacity in the form of guiding principles which assist in making
a decision on an adult’s capacity to make a particular decision. For
example, the English Mental Capacity Act 2005 provides a general
statutory definition of capacity in the form of guiding principles which give a
broad definition of how capacity is to be understood. Additional guidance
will be given in a code of practice to accompany the legislation when it comes
into force.[198]
3.28
The Commission is conscious that the assessment of capacity is a complex
issue which must be carried out in relation to each adult as an individual.[199]
Based on a detailed review of the Irish position in relation to legal capacity
in a number of key areas[200] and of
trends in other jurisdictions, the Commission considers that rather than being
unduly prescriptive, it would be beneficial for capacity legislation to contain
a broad statutory definition of capacity which would apply in a wide range of
situations.
3.29
The Commission recommends that capacity legislation should contain a
statutory definition of capacity.
3.30
Formulating an appropriate test for capacity is crucial, because a
decision that a person lacks capacity will be the gateway to a removal of
autonomy and to another person having responsibility to make or to assist in
the making of the relevant decision. Furthermore, it is important that
any definition of capacity is one which can be easily understood and applied.[201]
There are three main approaches to statutorily defining legal capacity – two
are negatively defined in terms of lack of capacity, the other defines capacity
in positive terms.
(a)
Defining lack of capacity in terms of causation
A causation-centred or diagnostic understanding
of incapacity focuses on the cause of a person’s decision-making disability and
usually involves a definition of incapacity rather than capacity. The Consultation
Paper on Law and the Elderly[202]
invited views on whether general legal incapacity should be defined to exist
where an adult is suffering from a mental disorder or a mental disability and,
because of that disorder or disability, is unable to make personal and health
care decisions and/or to manage property and affairs.
3.31
In a number of jurisdictions lack of capacity is predicated on a mental
disability pre-condition – the legislation requires that the decision-making
disability be caused by ‘mental disability’, ‘mental illness’ or ‘mental
disorder’. This mental disorder requirement appears in the Australian
State of Victoria’s Guardianship and Administration Board Act 1986 and
the Adults with Incapacity (Scotland) Act 2000. The Adults with
Incapacity (Scotland) Act 2000 defines incapacity by reference to the
existence of a mental disorder or inability to communicate because of a
physical disability which affects decision-making ability. Section 1(6)
defines “incapable” as
meaning:
“incapable of (a) acting; or (b) making decisions;
or (c) communicating decisions; or (d) understanding decisions; or (e)
retaining decisions … by reason of mental disorder or an inability to
communicate….”
3.32
Commentators have criticised the mental disorder pre-condition in the
Scottish legislation. While the use of the concept of mental disorder is
understandable in mental health legislation, which is primarily concerned with
the imposition of compulsory measures and thus requires strict definitions,
capacity legislation requires “a broad gateway to possible use of enabling and
empowering provisions.”[203] In
the United States the general trend in dealing with the issue of capacity is a
movement away from a determination of mental status and towards measurement of
the ability to function in society.[204]
3.33
Section 2(1) of the English Mental Capacity Act 2005 regards a
person as lacking capacity in relation to a matter if “at the material time he
is unable to make a decision for himself in relation to the matter because of
an impairment of, or a disturbance in the functioning of, the mind or brain.”
Section 3(1) states that a person satisfying this definition will be
treated as unable to make a decision for himself if he is unable:
“(a)
to understand the information relevant to the decision,
(b) to retain that
information,
(c) to use or weigh that
information as part of the process of making the decision, or
(d) to
communicate his decision (whether by talking, using sign language or any other
means).”
3.34
Defining ‘mental disorder’ is not a simple matter for doctors or
lawyers. One commentator on mental health law has described the
difficulty in the following terms:
“With
a physical disease or disability, the doctor can presuppose a state of perfect
or ‘normal’ bodily health (however unusual that may be) and point to the ways
in which the patient’s condition falls short of that. A state of perfect
mental health is probably unattainable and certainly cannot be defined.
The doctor has instead to presuppose some average standard for normal intellectual,
social or emotional functions, and it is not enough that the patient deviates
from this. For some deviations will be in the better-than-average
direction; even if it is clear that the patient’s capacities are below the
supposed average, the problem still arises of how far below that supposed
average is sufficiently abnormal, among the range of possible variations, to be
labelled a disorder.” [205]
These difficulties do not assist in defining
the presence or absence of a medical disorder. However, in any event,
there are strong arguments that the use of mental disorder labels in the
context of assessing a person’s capacity in law does not fit with a social as
opposed to the medical model of disability. As the Commission noted in
the Consultation Paper on Law and the Elderly,[206]
“the existence of a defined mental incapacity does not necessarily mean that
legal capacity is impaired or lost.”
3.35
The following comment of Berghmans and Widdershoven made in the context
of medical treatment and research illustrates the changing attitude to
capacity:
“In recent years, legal definitions of (mental)
capacity have moved from viewing mental capacity as a global, all-embracing condition,
to a more specific condition restricted to particular realms of
decision-making. This means that diagnostic categories (e.g.
schizophrenia, Alzheimer’s disease, depression etc…) as such cannot decide the
issue of decision-making capacity. Particular functional abilities that
may be considered relevant for mental capacity (e.g. understanding, practical
reasoning) are logically independent of most diagnostic and descriptive
categories. This means that capacity always has to be considered in
connection to a particular decision.” [207]
3.36
In the Seminar Paper on the Consultation Paper on Law and the Elderly,
the Commission commented on this issue as follows:
“One
view is that to focus on the cause of decision-making incapacity is unhelpful –
any definition of mental disorder may be too narrow to reflect an evolving
understanding of mental disability which may defy any neat
classification. Intellectual impairments have a range of different causes
and the nature and the existence of a particular illness or disability may have
a wide spectrum in terms of the effect on the individual. It may be
considered that the term ‘mental disorder’ is not appropriate to persons with
learning disabilities, emotional disorders and brain damage. In short, a focus
on mental disorder/mental disability labels may detract from a fair analysis of
the fundamental issue of a person’s decision-making ability.” [208]
3.37
The South African Law Reform Commission has recently recommended against
a causative reference to mental disability in capacity legislation.[209]
It was influenced in this context by a desire to avoid complex definitions of
mental illness and to avoid discriminatory labelling of persons who lack
capacity by declaring them to be mentally ill or incapable.
(b)
Defining lack of capacity in terms of lack of decision-making ability
3.38
In contrast to a causation-centred, diagnostic model, an effect-centred
definition of incapacity would be formulated in terms of the individual being
unable to make the relevant decision as opposed to focusing on the suggested
cause of such incapacity. This approach implicitly acknowledges that the
existence of a disability or illness does not lead automatically or inexorably
to the conclusion that the individual does not have capacity. In some
jurisdictions, the legislative formulation requires the person to understand the
nature and to foresee the consequences of a decision. For example,
section 6(1)(a) of New Zealand’s Protection of Personal and Property Rights
Act 1988 requires the person concerned to “lack, wholly or partly, the
capacity to understand the nature, and to foresee the consequences of decisions
in respect of matters relating to his or her personal care and welfare.”
In other jurisdictions the focus is on the individual’s ability to understand
information relevant to the decision and to appreciate its reasonably
foreseeable consequences.
(c)
Defining capacity in positive terms
3.39
Capacity legislation may choose to include a definition of “capacity”
rather than “incapacity”. This approach is similar to an effect-based
model of capacity as described in (b) above but with a focus on capacity rather
than lack of capacity. In the Canadian province of Saskatchewan capacity
is defined positively in terms of the ability to understand information
relevant to making a decision and to appreciate the reasonably foreseeable
consequences of making or not making a decision.[210]
(d)
The Commission’s view on defining capacity
3.40
The Commission’s preferred approach to defining capacity is one which
views people as individuals and not on the basis of labels such as mental
disorder. A positive definition of capacity is the
preferred option. The Commission believes that a positive functional
understanding of capacity which does not focus on any underlying causative
factors is appropriate.[211]
3.41
When should an adult be regarded as having capacity? Capacity
essentially relates to decision-making ability. Capacity should then be
understood primarily in terms of cognitive ability to understand and appreciate
the nature and consequences of the decision and available choices. An
adult is able to make a decision for themselves if they are able to understand
information relevant to the decision and to make an informed decision based on
that information. Cognitive ability entails the ability to arrive at a
decision by weighing relevant information in the balance.
3.42
An adult should not to be regarded as unable to understand relevant
information if he or she has the ability to understand an explanation of the
information in broad terms and in simple language or through the use of
pictorial or other visual aids.[212]
The fact that a person can only retain relevant information for a short time
should not automatically prevent them from being regarded as able to make a
decision.[213]
3.43
As discussed in Chapter 2, a legislative approach to capacity should
reflect the functional approach to capacity which is capable of accommodating
fluctuating capacity. Capacity legislation should specify that capacity is to
be judged in relation to a particular decision to be made at the time it is to
be made. [214]
3.44
The Commission recommends that the proposed capacity legislation
should contain a functional definition of capacity which focuses on an adult’s
cognitive ability to understand the nature and consequences of a decision in
the context of available choices.
3.45
If capacity legislation includes a functional definition of capacity
couched in terms of cognitive ability, this raises a number of relevant
points. First, while illnesses or disabilities may affect cognition, this
cannot be automatically presumed to be the case. Secondly, intrinsic to a
functional approach to capacity is that a person may lack capacity in some
domains but retain capacity in others. In addition, the Commission
believes that it should be emphasised that adults are free to make what others
regard as poor or eccentric decisions provided that they understand the nature
of the decision they are making.[215]
The Commission considers that, in order to avoid any
doubt on the matter, the proposed capacity legislation should state that an
adult should not be regarded as unable to make a decision merely because he or
she makes a decision which would ordinarily be regarded as imprudent as opposed
to irrational. This reflects the trend in other jurisdictions such as
the Canadian province of Saskatchewan,[216]
England and Wales[217] and New Zealand[218]
to include a statutory statement of principle to this effect.
3.46
The Commission recommends that an adult should not be regarded as
unable to make a decision merely because they make a decision which would
ordinarily be regarded as imprudent.
3.47
A further issue arises in connection with the formulation of a uniform
understanding of capacity. Even if an adult has the requisite cognitive
ability to make decisions, they may not be able to communicate their
choices. This does not mean that a person must have the ability to
communicate their choice verbally through fluent speech or in writing. It
simply requires that there be some method by which they can communicate their
decision if an action is required by someone else to carry that decision into
effect, for example, by the use of a computer or by other bodily signals.
In Ryan v Ryan[219] a testator
who was paralysed except for his throat and various facial muscles communicated
to a solicitor by a blinking system. The court was satisfied that the
solicitor had succeeded in ascertaining the testator’s wishes and intentions.[220]
3.48
The Commission is satisfied that a statutory definition of capacity must
encompass an ability to communicate a decision. In summary, the preferred
understanding of capacity which the Commission considers should be encapsulated
in legislation is that of cognitive ability to make the decision in question at
the time it is to be made and an ability to communicate effectively that
decision in a manner which permits it to be carried into effect.
3.49
The Commission recommends that a person will lack capacity if they
are unable to communicate their choices by any means where communication to a
third party is required to implement the decision.
4.
Chapter 4
review of EXISTING LEGAL MECHANISMS TO ADDRESS LOSS OF CAPACITY
A
Introduction
4.01
In order to formulate recommendations for legislative reform through the
introduction of capacity legislation, it is necessary to examine the existing
legal mechanisms which are designed to deal with the position of an adult who
lacks legal capacity. The primary mechanisms under Irish law are wardship
and enduring powers of attorney. Both regimes provide for the appointment
of substitute decision-makers and were previously considered in some detail by the
Commission in the Consultation Paper on Law and the Elderly.[221]
This chapter does not duplicate the comprehensive treatment of the
procedural aspects of both areas in the Consultation Paper on Law and the
Elderly. Rather, the objective here is to highlight selected aspects
of wardship and enduring powers of attorney which are worthy of attention in
the present context of a review of the law on capacity. Part B of this
chapter examines wardship and Part C examines enduring powers of
attorney. Part D contains the Commission’s conclusions in relation to
each legal mechanism. In particular, this chapter examines how these
regimes conceive of and define capacity, measured against the barometer of the
predominantly functional model of capacity which the Commission recommended in
Chapter 2.[222] The
chapter also examines the need for procedural safeguards in connection with
making determinations concerning a person’s legal capacity.
B
Wardship
4.02
The Wards of Court system is a substitute decision making regime
available for adults under Irish law.[223]
It owes its origins to the notion of the monarch as the parens patriae
or guardian of the people and particularly of those unable to take care of
themselves.[224] The
paternalistic concepts which are at the heart of the wardship system sit
somewhat uncomfortably with the more recent social and human rights models of
disability[225] and the
conception of capacity in functional terms.[226]
Furthermore, there are aspects of wardship procedure which may not reflect the
emphasis on adequate procedural safeguards designed to protect human rights
contained in the best practice recommendations of the Council of Europe[227]
and the European Convention on Human Rights (“ECHR”).
4.03
The responsibility for the operation of the Wards of Court system rests
with the President of the High Court[228]
and is administered by the Registrar and staff of the Office of Wards of Court.[229] The
criteria for wardship and the procedure for bringing a person into wardship are
set out in the Lunacy Regulation (Ireland) Act 1871 (“the 1871 Act”)[230] and Order 67 of the Rules of the Superior Courts 1986[231]
(“Order 67”). In 2003, 204 Orders were made by the High Court admitting
adults to wardship.[232]
(1)
Common Situations where Wardship Proceedings Instituted
4.04
Wardship proceedings are most commonly brought in respect of an adult
where that person has substantially lost capacity through illness or injury and
the person has a certain amount of money or property which needs to be protected
and used for their maintenance.[233]
Other common scenarios where applications for admission to wardship are made
include:
·
where a person receives
damages or a settlement in respect of personal injuries which had an adverse
impact on their mental capacity;[234]
·
where a person with a
psychiatric illness or a learning disability receives or inherits property
which they are unable to manage;[235]
·
where the consent of a
person with limited decision-making ability needs to be given to a particular
transaction in relation to their property;[236]
·
an individual requires
to be protected from an identified risk of harm.[237]
(2)
Procedure under Section 15 of the 1871 Act
4.05
In order to be taken into wardship, a person must be declared to be “of
unsound mind and incapable of managing his person or property.”[238]
(I)
Petition
4.06
Most commonly, wardship proceedings are taken by a family member[239]
in the High Court[240] under
section 15 of the 1871 Act.[241] This
involves petitioning the Court to conduct an inquiry into whether to admit a
person to wardship. The petition is accompanied by supporting affidavits
from two medical practitioners[242]
attesting that the person is of unsound mind and unable to manage their
affairs.[243]
4.07
Neither the 1871 Act nor Order 67 specifies what information should be
supplied in the medical affidavits. However, the Office of Wards of Court
recommends that information supplied should include:
(i)
the date on which and
place at which the examination took place (this should be no more than one
month before the affidavit is sworn);
(ii)
a description of the
person’s response to the examination, including, where relevant, references to
symptoms, demeanour and answers to mental tests;
(iii)
a diagnosis of the
person’s mental condition where applicable;
(iv)
any other observations
relevant to the issue of the person’s mental capacity or incapacity;
(v)
the opinion of the
medical practitioner as to whether or not the person is of unsound mind and
incapable of managing their affairs. [244]
(II)
Inquiry Order
4.08
If the President of the High Court is satisfied
with the medical evidence, an inquiry order is made and a Medical Visitor (a
consultant psychiatrist) is sent to examine the person and report back to the
Court. As a matter of practice, the Court will not issue an
inquiry order unless the term “of unsound mind” appears on the medical
affidavits.[245]
The term “of unsound mind” therefore presents a dilemma for doctors and family
members who are reluctant to attach such a stigmatising label. Indeed
doctors would not normally use the term “of unsound mind” to describe a person
with intellectual disability or a person who has experienced a decrease in
cognitive ability.
(III)
Notice
4.09
In order for a Wardship Inquiry to proceed, notice must be personally
served on the person in respect of whom the wardship application is made (“the
respondent”).[246]
This will notify the person of the right to submit objections in writing to the
Registrar.[247] The
person is also informed of their entitlement to seek to have the inquiry heard
before a jury. There are no guidelines as to who is the appropriate
person to serve notice on the proposed Ward and what explanations should be
given to them. Frequently notice of the wardship petition is served on
the person by the family member who has made the application. The
Commission notes the importance of fair procedures and the crucial importance
of ensuring that a potentially vulnerable person is aware of what wardship
involves and their legal right to object within 7 days.[248]
If a notice of objection is lodged with the Registrar of Wards of Court, the
Registrar will permit the respondent’s solicitor to forward a medical affidavit
and may then allow the exchange of medical affidavits between the petitioner
and the respondent. They may decide whether they wish to have their
medical practitioners give oral evidence at the Wardship Inquiry.[249]
4.10
While the respondent must be notified of the wardship application and
the fact that medical affidavits have been submitted, there is no requirement
to furnish them with details of or copies of the medical affidavits supporting
the petition. In addition, it would appear that the Medical Visitor’s
report is not made available to the subject unless they make an objection to
being made a Ward of Court and then make a request to be given a copy.[250]
4.11
In Eastern Health Board v MK[251] Denham J stated that “[w]ardship proceedings must be
fair and in accordance with constitutional justice.”[252]
Constitutional justice may not be complied with where a decision-maker relies
on information outside the hearing which has not been disclosed to the subject
of the decision.[253]
4.12
Article 6(1) of the ECHR guarantees the right to a fair hearing
including a legal determination of civil rights and obligations. In
the seminal case of Winterwerp v The Netherlands,[254] a case concerning the involuntary psychiatric detention
of a person which resulted in the automatic loss of their legal capacity to
deal with their property, the
European
Court of Human Rights (“ECtHR”) stated:
“The
capacity to deal with one’s property involves the exercise of private rights
and hence affects ‘civil rights and obligations’ within the meaning of Article
6(1).”
It would appear that, by analogy, the guarantee
of fair procedures in Article 6 applies to wardship procedures and the
determination of a person’s legal capacity.[255]
Arguably the practice of not automatically furnishing an adult who is the subject
of wardship proceedings with the medical affidavits and the report of the
Medical Visitor may also conflict with the guarantee of a fair hearing and
equality of arms contained in Article 6(1) of the ECHR. The principle of
equality of arms requires each party to be given a reasonable opportunity to
present his case under conditions that do not place either party at a
substantial disadvantage.[256] This
may require the respondent to be given access to information such as medical
affidavits and the report of the Medical Visitor in order to enable them or
their representatives to assess effectively the evidence and where appropriate
to oppose the wardship petition and to make an informed decision as to whether
to opt for a jury trial. The concept of fair procedures under Article
6(1) includes the right of the parties to “have knowledge of and [to] comment
on all evidence adduced or observations files with a view to influencing the
court’s decision.”[257]
4.13
The Commission notes that there is no provision for support, whether
legal or advocacy services, to be made available to the respondent once they
have been notified of the impending Wardship Inquiry in order to assist
them to understand what wardship involves and to formulate and lodge an
objection within the required seven days. Indeed, the requirements of
constitutional justice suggest that the courts should not make final orders
where an interested party is not present or represented in cases affecting
legal rights or interests.[258]
4.14
The decision of
the ECtHR in Winterwerp indicates that special procedural safeguards may
be called for in order to protect the interests of persons who on account of a
mental disability are not fully capable of acting for themselves.[259] In the later case of Del Sol v France[260] the ECtHR stated that the right of access to court
guaranteed by Article 6 of the ECHR is “practical and effective” rather than
“theoretical or illusory”. It has been suggested that a failure to
provide a person with the assistance of a lawyer may breach Article 6(1) “where
such assistance is indispensable for effective access to court”.[261]
(IV)
The Wardship Inquiry
4.15
The inquiry would appear to be more inquisitorial than adversarial in
nature and the rules of evidence are therefore relaxed[262]
unless the person has sought to have the inquiry heard before a jury.
This has some significance in relation to the assessment of capacity because a
clearly adversarial system would allow for cross-examination by the respondent
in relation to medical evidence on capacity. It is possible that the
guarantee of fair procedures in the context of the determination of civil
rights and obligations contained in Article 6(1) of the ECHR could extend to a
right to adversarial proceedings which would allow the petitioner’s medical
evidence to be challenged by the respondent.
4.16
The standard of proof of legal incapacity is not specified in the Lunacy
Regulation (Ireland) Act 1871. In the Consultation Paper on Law
and the Elderly,[263] the
Commission noted that in Re a Ward of Court (No.2)[264] there was “a considerable divergence of opinion on the
standard of proof” in relation to an application by a Committee to the Court
for a decision on medical treatment of a person who had been made a Ward of
Court.[265]
(3)
Test for Wardship
4.17
In order to be taken into wardship, a person must be declared to be “of
unsound mind and incapable of managing his person or property.”[266] A
decision to bring a person into wardship is judicial rather than administrative
in nature and must be exercised in accordance with the Constitution.[267]
Even where the criteria for wardship are satisfied, the court has a discretion
as to whether or not to make a Wardship Order.[268]
4.18
Re Keogh[269] is authority for the proposition that the requirement
that the person is “of unsound mind and incapable of managing his person or
property” is to be construed conjunctively rather than disjunctively. Ms
Keogh had been involved in a traffic accident which resulted in her sustaining
a skull fracture and brain damage. As a result of the accident High Court
proceedings were instituted in the name of Ms Keogh suing by a next friend,[270] and these proceedings were
settled. As a result a petition was presented to have Ms Keogh made a
Ward of Court, supported by two medical affidavits, and the President of the
High Court made an Order making her a Ward of Court. However, the
President of the High Court was unaware that Ms Keogh had lodged a letter
objecting to being made a Ward of Court.[271]
The matter was reviewed by the High Court and the jury considered (i) whether
Ms Keogh was of unsound mind; and (ii) whether she was incapable of
looking after her person and property. The jury found that Ms Keogh was
not of unsound mind but she was incapable of looking after her person or property.
Finnegan P held that since both matters had to be established, an order making
Ms Keogh a Ward of Court could not be made.
4.19
As noted above, there has been concern that there is a stigma attached
to the archaic labels used in the 1871 Act in relation to persons who are made
a Ward of Court.[272]
The perceived stigma may make family members reluctant to make an application
to have a relative made a Ward of Court. The recent High Court case of Dolan
v Registrar of Wards of Court[273]
illustrates such concerns. The case concerned a 21 year old with an
intellectual disability to whom a settlement of IRŁ3 million was made in
respect of a personal injury claim. The bulk of the money was placed with
the Accountant General pending an application to the President of the High
Court to make the man a Ward of Court. The parents did not initiate an
application for wardship and resisted medical examination of their son by a Medical
Visitor with a view to a wardship inquiry being initiated under section 12 of
the 1871 Act.[274] In
an application for an interlocutary injunction to prevent the inspection, the
parents contended that they were concerned not to have their son labelled as an
‘idiot’, ‘lunatic’ or a ‘person of unsound mind’.
4.20
Kelly J held that an Order directing a Medical Visitor to carry out an
examination was a necessary precondition to an application for wardship and
could not be the subject of an injunction. He stated that the term
“person of unsound mind” needed to be understood in the legal sense of a person
who is incapable of managing his affairs. He held that the term “of
unsound mind” connoted “no more than that the person is incapable of managing
their affairs”. This was undoubtedly influenced by the facts of the case
where the parents were seeking to avoid their son being made a Ward of Court on
the basis that they were unhappy to have the stigmatising label “of unsound
mind” applied to their son. However, while Kelly J’s approach in Dolan
was pragmatic, it sits somewhat uneasily with the approach taken by
Finnegan P in Re Keogh[275]
where it was held that the issue of whether a person was “of unsound mind” was
separate from the issue of whether a person is incapable of managing their
affairs and that both conditions had to be met. Both cases illustrate the
difficulties facing the judiciary in applying the 1871 Act in a contemporary
setting.
(4)
Impact of Wardship on Legal Capacity
4.21
The impact of being made a Ward of Court on a person’s decision-making
and legal capacity is monumental.[276]
O’Neill states that while “wardship may be accepted as a necessary and
justifiable form of paternalism it is important to be aware that it involves a
severe curtailment of individual liberties.”[277]
4.22
When a wardship order is made by the High Court, the Court will appoint
a Committee of the Estate and a Committee of the Person to take charge of the
day to day affairs of the person under the supervision of the President of the
High Court. The Court may order that all the funds of the person admitted
to wardship be lodged in the Accountant’s Office for investment and management
on their behalf.
4.23
The legal effect of being made a Ward of Court is that the Court is
vested with jurisdiction over all matters relating to their person and estate.[278]
In other words, a person who has been made a Ward of Court loses the right to
make any decisions about their person and property. Although the Court
will have regard to the views of the committee and family members, the Court
will make decisions based on the criterion of the ‘best interests’ of the Ward.[279]
In Re a Ward of Court (No.2)[280] Lynch J’s approach of “the standpoint of a prudent and
loving parent”[281] was
approved by Hamilton CJ in the Supreme Court.[282]
However, the fact that a person has been made a Ward of Court does not give
them an entitlement to receive the services which will best serve the interests
of their personal welfare. CK v Northern Area Health Board[283]
concerned a Ward of Court whose funds were no longer sufficient to provide the
24 hour care that he needed. His sister sought a declaration that the
Health Board’s failure to provide adequate care at home for the Ward was in
breach of its statutory obligations. Although McGuinness J stated that
“[i]t is abundantly clear that it is in the interests of the ward that he
should be maintained in his own home”, the Supreme Court held that the Health
Act 1970 could not be interpreted as requiring the Health Board to provide
an equivalent home care service to that which would be provided in hospital.
4.24
A person who has been made a Ward of Court cannot enter a binding
contract,[284] cannot
marry,[285] cannot
independently institute or defend legal proceedings,[286]
cannot buy or sell property or have a bank account. They may make a will
if the High Court is satisfied that they have the required capacity to do this
upon medical evidence of testamentary capacity being adduced. A person
who has been made a Ward of Court does not have legal capacity to consent to
medical treatment.[287] They
cannot transfer residence from one nursing home to another without the consent
of the High Court nor can they travel outside the country without the consent
of the High Court.[288]
O’Neill comments that in view of the potential deprivation of liberty involved,
there should be a statutory requirement for the applicant to examine less
restrictive alternatives to wardship before making a wardship application.[289]
(5)
Review of Capacity and Welfare of a Ward
(I)
Periodic Review
4.25
A wardship order is of indefinite duration.[290]
There is no systematic requirement that a person who has been made a Ward of
Court be regularly visited or for periodic review of their welfare and general
circumstances to be carried out. Section 56 of the Lunacy Regulation
(Ireland) Act 1871 provides that the President of the High Court may direct
a Medical Visitor to visit a person after they have been made a Ward of
Court. In addition, the Registrar has the power to require the Committee
of the Person to provide details of the Ward’s residence and physical and
mental condition periodically.[291]
4.26
In practice, the situation of an individual who has been made a Ward of
Court is often likely to be examined only where a specific complaint has been
received by the Office of Wards of Court.[292]
Where there is no periodic review of the capacity or welfare of a person who
has been admitted to wardship, this gives rise to human rights concerns.
Similar concerns led to the enactment of the Mental Health Act 2001 which
provides for the systematic review of involuntary psychiatric detention by
Mental Health Tribunals.[293]
(II)
Wardship and Order to
Reside in a Psychiatric Unit or Long Stay Care Facility
4.27
Frequently, where the person admitted to wardship resides in a long term
care facility (nursing home) or psychiatric unit, an order is made that they
should be detained there until further order. Section 57 of the 1871 Act
dictates that where a person who has been made a Ward of Court is a private
patient in a psychiatric hospital they must be visited at least four times a
year by a Medical Visitor who will report on their mental and physical
condition to the President of the High Court. In the case of a public patient
in a psychiatric hospital, the statutory requirement is limited to at least one
visit a year by a Medical Visitor.[294]
This distinction between public and private patients which has its origins in
the 1871 Act is difficult to justify. Furthermore, there is no comparable
review requirement in respect of persons who are resident in a long stay care
facility as opposed to a psychiatric hospital.
4.28
A court order for a person’s continuing detention which is consequent on
the making of a wardship order falls outside the remit of the Mental Health
Act 2001 and the review mechanisms provided for in that legislation in
respect of involuntary psychiatric detention. It is arguable that
statutory provision for a person who has been made a Ward of Court to apply to
the High Court to be discharged from wardship does not constitute an adequate
review mechanism to address continuing detention in a long stay care facility
or psychiatric residence having regard to case-law concerning Article 5 of the
ECHR. Article 5(1)(e) of the ECHR guarantees that no-one shall be
deprived of their liberty as “a person of unsound mind” except in accordance
with a procedure prescribed by law. Article 5(4) of the ECHR provides:
“Everyone
who is deprived of his liberty by arrest or warrant shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.”
4.29
The leading ECHR case in this area is Winterwerp v The Netherlands.[295] Mr Winterwerp was involuntarily detained in a
psychiatric hospital as a “person of unsound mind”. Under Dutch law this
resulted in the automatic loss of his legal capacity to administer his
property. He complained about not being given an adequate opportunity to
challenge his detention contrary to Article 5(4) of the ECHR. In relation
to Article 5(4) the ECtHR stated that:
“[t]he
very nature of liberty under consideration [involuntary psychiatric detention]
would appear to require a review of lawfulness to be available at reasonable
intervals.”
The ECtHR made it clear that detention which
was initially lawful could become unlawful if a person was no longer of unsound
mind.
Furthermore, the ECtHR stated that:
“it
is essential that the person concerned should have access to a court and the
opportunity to be heard either in person or, where necessary, through some form
of representation….”.[296]
Therefore in this case, the court concluded
that Mr Winterwerp had been the victim of a breach of Article 5(4) of the
ECHR. A number of ECHR cases establish that Article 5(4) is a right not
just to review, but to periodic review.[297]
4.30
In HL v United Kingdom[298] a man with autism who was unable to speak and was
described as having limited understanding was detained in a psychiatric unit
after becoming agitated at a day centre and banging his head against a
wall. The patient was admitted informally rather than being compulsorily
detained and as such was not subject to the safeguards which applied to compulsory
detention under the UK Mental Health Act 1983. A number of months
later, acting through a next friend, the man made an application for judicial
review of the hospital’s decision to admit him. When the case reached the
House of Lords, it was held that the detention and treatment were justified
under the common law doctrine of necessity. In the ECtHR the arguments on
behalf of the applicant were that he had been deprived of his liberty contrary
to Article 5(1) in a manner which was not “in accordance with a procedure
prescribed by law” and was not lawful because he was not of unsound mind.
It was argued that while it may have been an emergency at the time of his
admission, the circumstances did not justify his continuing detention and that there
was no adequate provision for review. While the Article 5(1) submission
was found by the ECtHR to lack merit, the Court found that the lack of
procedures governing detention and its review left “effective and unqualified
control” in the hands of the relevant healthcare professionals and that the
lack of procedural safeguards failed to protect against arbitrary deprivations
of liberty particularly as there was no procedure for “continuing clinical
assessment of the persistence of a disorder warranting detention.”[299]
In relation to Article 5(4), the Court considered that the possibility of
making an application for judicial review was an insufficient mechanism for
reviewing the lawfulness of continuing detention.
(III)
Application for
Discharge from Wardship
4.31
An adult who has been made a Ward of Court can make an application to
the President of the High Court to be discharged from wardship.[300]
The Court may discharge a person from wardship on satisfactory medical evidence
of the person’s mental capacity being produced.[301]
If a discharge is granted this will restore the person’s legal capacity and
control of their person and property.
4.32
In Matter v Slovakia[302] the guarantee of fair procedures in Article 6 of the
ECHR was held by the ECtHR to apply to proceedings to determine whether or not
legal capacity can be restored to the applicant to enable him to carry out
certain legal acts. The judgment of the ECtHR in Winterwerp v The
Netherlands[303] suggests that it should not be left to the initiative of
a person who has been made a Ward of Court to seek to obtain legal
representation to have their case reviewed by a Mental Health Review
Tribunal. Recently similar concerns were expressed by the Court of Appeal
in R(MH) v The Health Secretary,[304] a case concerning the review of involuntary
detention of a woman with Down’s syndrome who lacked the capacity to initiate a
review application concerning her detention under section 2 of the UK Mental
Health Act 1983. It was argued on her behalf that although a right to
have her detention reviewed by a Mental Health Review Tribunal was provided for
in the legislation, this was not sufficient to comply with Article 5(4) of the
ECHR because the woman would not have the capacity to make such an application.
The Court of Appeal granted a declaration of incompatibility with Article 5(4)
in respect of the section’s failure to make provision for circumstances in
which a person is incapable of exercising the right to make an application to a
Mental Health Review Tribunal on their own initiative.
4.33
Having regard to the case-law on Article 5(4) of the ECHR, the
Commission considers that the lack of a system of automatic independent
periodic review with appropriate safeguards to protect the interests of the
person who has been made a Ward of Court gives rise to real concerns which need
to be addressed.
(6)
Proposals for Reform
4.34
In 1965 the Commission of Inquiry on Mental Handicap recommended, inter
alia, that the law relating to Wards of Court be brought “into conformity
with the modern terminology applied to the mentally handicapped”.[305]
This recommendation was echoed in In Re D[306] by Finlay CJ where he stated:
“Having
regard to the fact that in many instances mental retardation or mental handicap
does not equate with unsoundness of mind, I would also consider it desirable
that legislation should be enacted to provide for the protection of persons
suffering from mental handicap where the law does not already do so.
Valuable recommendations in this context were made in the report issued by the
Commission of Inquiry into Mental Handicap in 1965.”
4.35
The Law Reform Commission’s Consultation Paper on Law and the
Elderly,[307] identified
a number of shortcomings associated with wardship. These related to
jurisdictional and procedural issues and the substitute decision-making process
once a person has been made a Ward of Court. In addition, the Commission
identified issues which go the root of how capacity is conceived and assessed
under the wardship regime and the effect in capacity terms of being made a Ward
of Court:
“The
Wards of Court system is cumbersome and outdated. The language and
concepts used in the legislation are inappropriate to the current understanding
of mental illness, mental impairment and legal capacity. The basis of the
jurisdiction is not clear, the procedures involved are lengthy and too many
decisions have to be referred to the President of the High Court. The
powers and duties of the appointed Committee are not clear and the legislation
does not deal with how decisions about the person of the Ward are to be made.
The method of dealing with the Ward’s money is very cumbersome.” [308]
4.36
The limitations of the operation of wardship led the Commission to
propose a new substitute decision-making system for protecting vulnerable
adults.[309] The
Commission notes that the Courts Service’s Directorate of Reform and
Development is currently conducting a review of the wardship jurisdiction.
C
Enduring Powers of Attorney
4.37
An adult who has the required level of capacity can plan for possible
future loss of capacity by executing an enduring power of attorney (“EPA”)
under the Powers of Attorney Act 1996.[310]
An EPA is designed to provide for the appointment of an individual[311]
or trust corporation as an attorney who can make certain decisions in the event
of future loss of decision-making capacity. If a person has executed an
EPA, this may avoid the possibility of them having to be made a Ward of Court
if they lose capacity at a later stage. However, while the ability to
nominate a trusted decision-maker to make important decisions in the event of a
future loss of capacity is a welcome development, its utility is limited to
situations where a person has both the foresight and the capacity to put the
procedure in place. EPAs are not ideally suited to adults with
intellectual disability who are less likely to have the requisite capacity to
execute an EPA.
(1)
Procedural Requirements
4.38
An EPA is an instrument which complies with the procedural requirements
of the Powers of Attorney Act 1996. It must state that the donor
intends the power to become effective during any “subsequent mental incapacity”
of the donor which complies with the procedural requirements for its creation.[312]
4.39
When an EPA is executed in the prescribed form[313] it
has no legal effect until it is registered.[314]
Section 9 of the Powers of Attorney Act 1996 provides that an EPA can be
registered when the donor of the EPA becomes or is becoming mentally
incapacitated. The registration of an EPA and admission to wardship
require an assessment of a person’s general capacity to manage their person and
property. Section 9 requires attorneys to make an application for
registration to the Registrar of Wards of Court “as soon as practicable” if
they have reason to believe that the donor is or is becoming mentally
incapable. [315]
(2)
Conception of Capacity
4.40
Section 4(1) of the Powers of Attorney Act 1996 defines “mental
incapacity” as “incapacity by reason of a mental condition to manage his or her
own property and affairs”. An EPA can only be executed by an individual
with the requisite present capacity to do so.[316]
One commentator makes the point that “[t]hese two conditions do not
automatically coincide. People suffering from mental disorder may be
quite capable of looking after their financial affairs, and those who are not
mentally disordered may be completely hopeless in running their affairs.”[317]
4.41
While there is no specific statutory test of capacity to execute an EPA
in the 1996 Act,[318] the Enduring
Powers of Attorney Regulations 1996[319]
require the EPA to be in a particular format and to include:
· a
statement by a medical practitioner that the donor, with the assistance of any
explanations he or she gave to the donor, had the mental capacity to understand
the effect of creating the power;[320]
· a
statement by the donor that the donor has read certain information as to the
effect of creating an EPA; and
· a
statement by the solicitor that, after interviewing the donor and making any
necessary inquiries, the solicitor is satisfied that the donor understood the
effect of creating the EPA and the solicitor has no reason to believe that the
document is being executed by the donor as a result of fraud and undue
pressure.
4.42
These requirements have the objective of ensuring that the person has
sufficient understanding to have the requisite capacity to make an EPA and that
they do so freely of their own volition. Clearly certain people will not
have the requisite capacity and, in certain cases, particularly where dementia
has begun to take its course, it will be a question of degree as to whether the
person has the requisite capacity.[321]
On the other hand, if the standard of capacity required to execute an EPA is
pitched too high then the possibility of appointing a substitute decision-maker
will be reduced.
4.43
The English case of In Re K (Enduring Powers of Attorney), In re F[322] concerned the degree of capacity required to execute an
EPA. In this case it was held that the test for capacity to execute a
general power of attorney (which would continue despite the donor losing
capacity) was whether the person understood that the attorney would be able to
assume control over their affairs. Hoffman J stated that if the donor had
the capacity to sign an enduring power of attorney but was incapable of
managing their property, the attorney should register the power of attorney
without delay.
(3)
Impact of an EPA on Legal Capacity
4.44
The extent of loss of capacity which registration of an EPA entails will
vary according to the terms of the particular EPA. It is open to the
donor to provide for their attorney to be given power over property, financial
and business affairs and personal care decisions[323]
or any of these should they lose capacity.[324]
Once registered, the donee’s powers become operative in accordance with
the terms of the EPA.
4.45
Where personal care decisions are being made by an attorney, the
attorney is required to act in the person’s best interests and to take into
account:[325]
· The
past and present wishes and feelings of the donor;
· Permitting
and encouraging the person to participate as fully as possible in the decision;
· Consultation
with anyone named by the donor to be consulted and anyone interested in the
donor’s welfare;
· The
least restrictive method of achieving the purpose for the decision.[326]
4.46
If an EPA does not give sufficient powers to the attorney, it may prove
necessary to take wardship proceedings. An EPA is not automatically
invalidated if the donor becomes a Ward of Court but section 5(9) of the Powers
of Attorney Act 1996 gives the Court power to invalidate an EPA in these
circumstances.
(4)
Revocation of an EPA
4.47
In the Consultation Paper on Law and the Elderly,[327]
the Commission recommended that solicitors should be obliged to inform clients
of the right to revoke an EPA.[328]
This recommendation was followed in the Law Society’s subsequently adopted
guidelines for solicitors in relation to enduring powers of attorney.[329]
The Powers of Attorney Act 1996 does not provide procedures for the
revocation of an EPA prior to its registration. It may be revoked after
registration if the revocation is confirmed by the Court.[330]
D
Conclusions
4.48
In the Consultation
Paper on Law and the Elderly,[331]
the Commission made extensive recommendations for the replacement of the
wardship system and to broaden the remit of EPAs. The central conclusion
of the Consultation Paper was that a new system for the protection of
vulnerable adults is needed.[332] The
Consultation Paper went on to propose the creation of a new substitute or
assisted decision-making system for vulnerable adults with limited
decision-making ability. Under the proposed system, adults with a decision-making
disability who lack legal capacity could have a Personal Guardian appointed to
make decisions on their behalf.
4.49
The Commission reiterates the concerns expressed in the Consultation
Paper on Law and the Elderly in relation to the outdated conception of
capacity and the objectionable terminology which permeate the wardship
regime.
(1)
Wardship
4.50
Undoubtedly the language used in the 1871 Act in relation to capacity is
objectionable. Labels such as “idiot”, “lunatic”, “lunacy” and “person of
unsound mind”[333] are
unnecessarily stigmatising and reflect a paternalistic approach which was
prevalent at the time of the legislation’s enactment. They do not reflect
the social model of disability’s emphasis on ability.[334]
Nor do they reflect the evolution and development of human rights[335]
and constitutional rights emphasising the values of autonomy and
self-determination. The importance of choosing appropriate and clear
tests of capacity formulated in sympathetic language is illustrated by Re
Keogh[336] and Dolan v Registrar of Wards of Court.[337]
4.51
The Commission regards the use of phrases such as ‘idiot’, ‘lunatic’
and ‘person of unsound mind’ in the Lunacy Regulation (Ireland) Act
1871 as out of step with the contemporary understanding of disability and
recommends that they should not form part of any reforming legislation.
4.52
At a more fundamental level, the test for wardship presents capacity as
an all-or-nothing status[338] which does
not take account of contextual variation in decision-making ability. Thus
a person’s general legal capacity is seen in black and white terms as either
present or absent rather than viewing capacity in functional, issue-specific
terms. This may not present a difficulty where a person’s senile dementia
is so far advanced that they have minimal cognitive or decision-making
ability. However, a status approach to capacity does not allow for the
existence of a middle ground to deal with, for example, an adult who can make
many decisions independently but is not good at handling money. Indeed,
the current arrangements for wardship are out of step with the Council of
Europe Recommendation on the Legal Protection of Vulnerable Adults,[339] Principle 3(2) of which states that a measure of protection
for vulnerable adults
“should
not automatically deprive the person concerned of the right … to consent to any
intervention in the health field, or to make decisions of a personal character
at any time when his capacity permits him or her to do so.”
4.53
These concerns are addressed by the recommendations in the Consultation
Paper on Law and the Elderly[340]
to replace wardship with a new system of substitute decision-making which
embraces a functional understanding of capacity.
4.54
In this chapter, in the context of a review of the wardship regime, the
Commission raised the importance of procedural safeguards when adjudicating on
a person’s capacity. This requirement of procedural fairness arises both
as a matter of constitutional justice and also in connection with the
application of Articles 5 and 6 of the ECHR. The Commission’s conclusion
is that the design of a new system for adjudicating on legal capacity issues
will necessitate accompanying safeguards to be built in to ensure that a person
whose capacity is called into question has access to appropriate information
about the process in terms they will understand. It would be important to
provide advocacy and legal representation in order to assist such adults to
understand the implications of the process and to make submissions in relation
to their legal status. Furthermore, in accordance with this Consultation
Paper’s espousal of a functional understanding of capacity, and the
requirements of human rights law, capacity legislation should provide for
automatic periodic review of a decision on capacity which has ongoing
implications.
4.55
The Commission recommends that capacity legislation should ensure
that a determination of a person’s legal capacity complies with procedural
fairness by ensuring that the person has appropriate assistance in terms of
information, access to representation and other reasonable assistance which will
enable them to understand the implications of the process and to make
submissions in relation to their capacity.
4.56
The Commission recommends that where it has been determined that a
person lacks capacity in a particular area which has an ongoing impact on their
decision-making ability, the proposed capacity legislation should make
provision for a system of automatic periodic review of that determination, with
appropriate procedural safeguards to protect the rights of the person concerned.
(2)
Enduring Powers of Attorney
4.57
In the Consultation Paper on Law and the Elderly[341] the Law Reform Commission concluded that the EPA system
“has the potential to be a very useful mechanism as it facilitates the
retention of as much autonomy as possible for vulnerable adults.”[342]
EPAs are, however, limited to those who have the capacity to execute them in
the first place.
4.58
The EPA system is open to criticism for operating a status approach to
capacity rather than a functional view of capacity which measures
decision-making ability relative to the time and nature of the decision to be
made. Registration of an EPA occurs when the donor becomes mentally
incapable. The statutory definition of incapacity in the Powers of
Attorney Act 1996, which is based on a person being incapable by
reason of a mental condition to manage their property or affairs, constitutes
an all-or-nothing approach to capacity which does not pay attention to the type
of decision to be made at the time it is to be made.[343]
Indeed, in England and Wales the UK government was opposed to registration of
proposed lasting powers of attorney at a notional point of incapacity because
“[i]t would be wrong to rely on blanket labels of incapacity to avoid the
complexities of assessing capacity in relation to the particular decision at
the particular time.”[344]
4.59
The Commission’s conclusion is that EPAs operate under the Powers of
Attorney Act 1996 in a rather unsubtle manner because the legislation is
based on an underlying view of capacity as either present or absent. This
perspective would need to be reviewed in the context of the recommendation in
this Consultation Paper that capacity should be understood in predominantly
functional terms[345] and the
recommended legislative understanding of capacity set out in Chapter 3 above.
4.60
The Commission recommends that the approach to capacity in the Powers
of Attorney Act 1996 be reviewed in the light of the definition of capacity
recommended in this Consultation Paper.
PART
B
specific areas of decision-making
5.
Chapter 5
capacity to contract
5.01
This chapter discusses the capacity of an adult with limited
decision-making ability[346]
to enter into an enforceable contract.[347]
In an everyday context common contracts include those relating to the
purchase of goods and services, the rental and purchase of accommodation,
insurance contracts, loans and credit transactions, and employment
contracts. There is a tension in the law in this area between the need to
protect vulnerable adults and the counterbalancing need to protect the good
faith supplier who is unaware that a person may lack the requisite capacity to
enter the contract. Modern disability policy would suggest a further
policy goal of facilitating persons with a mental disability to live their
lives as independently as possible.[348]
Part B of this Chapter considers the policy considerations which underlie the
law on contractual capacity. Part C considers the circumstances in which
a contract entered into by an adult with limited decision-making capacity may
be avoided by them. Part D considers the impact of loss of capacity on
agency relationships and the effect which appointing a substitute
decision-maker may have on a person’s contractual capacity. Part E
discusses the discrete obligation on persons lacking contractual capacity to
pay a reasonable price to suppliers for “necessaries”. Part F considers
the implications of the Equal Status Acts 2000 to 2004 on the behaviour
of suppliers in relation to contracts with persons who have limited
decision-making ability. The recommendations of the Commission in this
area are contained at the end of this chapter in Part G.
5.02
Generally a contract is the outcome of a process of offer and acceptance
by two or more parties of a bargain which involves the passing of consideration[349]
(money or other form of value) from one party to the other in return for goods
or services supplied. In Tansey v The College of Occupational Therapists,[350]
Murphy J described the contractual process in the following terms:
“Contractual
obligations derive from agreement made between two or more parties under which
one promises or undertakes with the other the performance of some action.
Ordinarily, the existence of an agreement presupposes an offer by one party to
perform the action on certain terms and the acceptance of that offer by the
other.”[351]
5.03
Therefore, if by reason of a lack of mental capacity one party fails to
appreciate the nature and effect of the putative contract, it might be supposed
that there is no real mutual intent to contract and that there should be no
contract. The difficulty is that however equitably the rules are
formulated, losses may occur which have to be borne by someone.[352]
Therefore the case-law has built up principles which endeavour to find an
appropriate balance as between the parties. The law of contract has
sought to balance two countervailing considerations: first, the duty to protect
those who through lack of mental capacity are unable to protect their own
interests, and, secondly, the desirability of upholding contracts in the
interests of certainty where there has been no underhand dealing, in order to
ensure that contracting parties are not prejudiced by the actions of a person
whose lack of capacity is not apparent.[353]
5.04
The law’s desire to uphold bargains where possible is evident in the
general rule that a person will be bound by a contract unless they can show (i)
that by reason of their mental condition at the time they did not understand
what they were doing and the effect it would have on their interests, and (ii)
that the other contracting party was aware of this lack of capacity.[354] The
law on capacity to contract has therefore operated differently from capacity in
other contexts in that a proof of lack of understanding is not in itself
sufficient to vitiate a contract. Consequently, a presumption of capacity[355]
to contract has not been expressly articulated by the courts since proof of lack
of understanding is not alone sufficient to cast off contractual liability.[356]
As the Law Commission of England and Wales stated “[i]t is arguable, therefore,
that the contractual position is in truth a rule of unconscionability rather
than a rule of capacity.”[357]
C
The Rules on Contractual Capacity
5.05
Before going on to consider the rules governing contractual capacity in
greater depth, it should be observed that there has been comparatively little
consideration of the distinct area of capacity to contract in the common law
world. Rather, case law has tended to concentrate on the application of
the allied equitable doctrines of undue influence and unconscionable bargain.[358]
There is a considerable body of consumer protection measures in place, many
of them EU-driven, which offer protection to consumers in a wide range of areas
such as doorstep selling, the provision of credit and unfair terms in consumer
contracts.[359] The
formulation of consumer policy is actively under consideration by the Consumer
Strategy Group[360] and the
Irish Financial Services Regulatory Authority.[361]
While such protective measures are designed to protect the consumer from
being taken advantage of, on the other side of the coin, the Equal Status
Acts 2000 to 2004 require that where a person has capacity to contract this
should be respected.[362]
(1)
Level of Understanding Required
5.06
A person must be capable of understanding the nature and effect of the
specific contract into which they are entering.[363]
In establishing this, differing considerations apply to adults whose cognitive
capacity is permanently impaired in comparison to those who experience periods
of temporary cognitive impairment through the impact of mental or degenerative
illness.
5.07
The degree of understanding required will vary according to the
complexity of transaction.[364] Thus
a person may be regarded as having capacity to purchase a cinema ticket but not
the capacity to enter into a finance agreement in respect of a car. Where
a person is suffering from delusions this is not conclusive as to their ability
or inability to understand the contract even where the delusions are connected
with the subject matter of the contract.[365]
If the person had capacity when the contract was entered into, evidence of a
subsequent lack of mental capacity is immaterial.[366]
5.08
Where a person has a mental illness it may be that the underlying
motivation to act is of greater significance than cognitive ability to
understand the nature and effect of the transaction. For example, during
the manic phase of bipolar affective disorder (sometimes referred to as ‘manic
depression’) a person with an elevated mood may engage in an extravagant
shopping spree spending vast amounts of money on expensive items they would not
normally consider buying. In such circumstances it may be said that the
person has a compulsion to act in a manner which they would not normally.
The American courts have recognised that a person does not have capacity to
contract when they enter it “under the compulsion of a mental disease or
disorder but for which the contract would not have been made.”[367] If a
person is so affected by mental illness as not to have any idea what he is
signing, he may seek to repudiate the obligations created by the document by
pleading non est factum (‘this is not my deed’).[368]
A successful plea of non est factum renders a contract void ab initio
whereas lack of capacity to understand renders it voidable.[369]
5.09
Under the Rule in Beverley’s Case,[370]
a person could not plead their own incapacity as a defence to an action for
breach of contract. That rule was relaxed by the courts in the mid-19th
century with the result that what was termed ‘unsoundness of mind’ would be a
good defence to an action for breach of contract if it could be shown that the
other party was aware of it.[371]
5.10
The decision of the Court of Appeal in Imperial Loan Co v Stone
developed the modern rules on capacity to contract.[372] In
that case the defendant argued that at the time he signed a promissory note as
surety he was so insane that he could not understand the transaction.
Lord Esher MR stated that even where this was established, “the contract is
binding on him in every respect, whether it is executory or executed, unless he
can prove further that the person with whom he contracted knew him to be so
insane as not to be capable of understanding what he was about.”[373]
5.11
The circumstances may be such that any reasonable person would be aware
of the person’s lack of capacity. In the Irish case of Hassard v Smith[374]
it was held that to vitiate a contract the circumstances of which the other
party had knowledge must lead to the reasonable conclusion that the person
lacked capacity. In this case a lack of capacity to enter a lease would
appear to have been pleaded in order to break the lease but it was held that a
lack of capacity would not have been apparent to the other party.[375]
In Collins v May,[376] the Supreme Court of Western Australia held that it is
not necessary to establish that the other party had precise knowledge of the
existence of the relevant medical condition and lack of mental capacity - in
appropriate circumstances constructive knowledge of the lack of capacity could
be ascribed to the other party. In that case a woman who made a voluntary
disposition of her house suffered from senile dementia and the defendant was
aware of a number of relevant factors which would give rise to an apprehension
that she might not have sufficient capacity. Accordingly, the voluntary
disposition of the property was set aside.
5.12
If it is proven that the other party knew of the person’s lack of
capacity, the contract is voidable at the option of the person who lacked the
capacity and, as a general rule, title will pass unless the transaction is
avoided. It would appear that a person may be bound by a contract which
would otherwise be voidable if their behaviour during a lucid interval or on
recovery amounts to a ratification of the contract. [377]
(a)
Executory and Executed Contracts
5.13
The English courts have declined to distinguish between executory
contracts[378]
and executed contracts[379] in
relation to their enforceability where one party’s contractual capacity is
affected by mental incapacity.[380]
Clearly, avoiding an executory contract is less likely to cause prejudice than
endeavouring to undo a contract which has been executed. Indeed, in certain
circumstances effecting restitutio in integrum (placing the parties back
in their original position before the contract was entered into) may be
difficult or impossible in relation to an executed contract.
5.14
A restitutionary solution is provided in section 15 of the American Law
Institute’s Restatement (Second) of Contracts[381] which provides that a contract may be avoided by a
person if by reason of mental illness or defect he is unable to act in a
reasonable manner in relation to the transaction and the other party has reason
to know of his condition. Where the contract is made on fair terms and
the other party is without knowledge of the mental illness or defect, the power
of avoidance cannot be exercised to the extent that the contract has been
performed or where the circumstances have so changed that avoidance would be
unjust. In such a case, the Restatement gives the court a broad
discretion to grant such relief as justice requires.[382]
5.15
The Law Reform Commission’s Report on Minors’ Contracts[383] considered
the necessaries rule which applies to minors under section 2 of the Sale of
Goods Act 1893. In that Report, the Commission favoured reform in the
guise of a statutory based restitutionary approach. This would mean that
a contract made by a minor with an adult party would be enforceable by the
minor against the adult but unenforceable by the adult against the minor.
The adult would, however, be entitled to apply to the court for compensation
based on restitutionary rather than contractual principles.[384]
The Commission went on to recommend that in making any such order the Court
should have regard to a variety of factors such as the type of contract, the
value of any property involved, the mental capacity and experience of the
minor, the respective economic circumstances of the parties, the value of any
benefit obtained by each party as a result of entering the contract and the
expenses and losses sustained or likely to be sustained by each party in making
and discharging the contract.[385]
5.16
The Commission is aware that different considerations apply to adults
who may lack contractual capacity from those applicable to minors. In
particular, the lack of capacity which the law imposes on minors is based on
age alone rather than individual decision-making capacity. Nevertheless,
for present purposes it should be noted that the development of some form of
restitutionary solution in relation to contracts entered into by persons lacking
capacity may allow for the development of an even-handed equitable approach
tailored to take account of all the circumstances.
(b)
Contractual Unfairness
5.17
Hart v O’Connor[386] is authority for the proposition that mere contractual
imbalance or unfairness in a contract with a person who lacks mental capacity
will not be sufficient to vitiate it. In this case, an 83 year old man,
entered into an agreement to sell land to a purchaser who was unaware of his
lack of mental capacity. The Court of Appeal in New Zealand held that
although the purchaser did not know of the vendor’s contractual incapacity, the
agreement was unenforceable because the terms were unfair. On appeal, the
Privy Council confirmed the test in Imperial Loan Co v Stone[387] to the effect that where the lack of mental capacity is
not known to the other party, the contract will be binding.[388]
Where unfairness is raised, it may be dealt with by the law relating to
unconscionable bargains. It is likely that a similar approach would be
taken by the Irish courts who have recognised that in appropriate cases the
equitable doctrines of unconscionable bargains and undue influence may be
invoked in relation to unfair contracts.[389]
D
Appointment of Agents and Substitute
Decision-Makers
5.18
Where a person’s lack of capacity renders them incapable of acting on
their own behalf, they will not have the legal capacity to appoint an agent.[390]
Furthermore, if a principal becomes mentally incapable, the agency relationship
will terminate.[391] The Powers
of Attorney Act 1996 provides an exception to this principle in the form of
an enduring power of attorney which is specifically designed to take effect
following any subsequent loss of capacity by the donor.[392]
5.19
When a person who is incapable of managing their affairs has been made a
Ward of Court their affairs are managed by a committee of the estate and a
committee of the person.[393]
It would appear that any purported attempt by a Ward of Court to enter into a
contract will be void irrespective of the other party’s knowledge of his or her
status as a Ward of Court because any dealing by the Ward with his or her
property is considered inconsistent with the passing of control over the Ward’s
property to the committee of the estate.[394]
5.20
In the Consultation Paper on Law and the Elderly[395] the Commission recommended the establishment of a new
system of appointing substitute decision-makers for adults who lack capacity
including the ability to enter into contracts on their behalf. Other
jurisdictions have sought to address the issues of a person in respect of whom
a substitute decision-maker has been appointed entering into contracts in a
manner which is inconsistent with such an appointment.
5.21
Section 53 of New Zealand’s Protection of Personal and Property
Rights Act 1988 largely removes the contractual liability of persons
subject to a management order other than in relation to necessaries.
However, special authorisation may be obtained in respect of a particular
transaction. A transaction entered into by a person lacking capacity is
not automatically void – the other party may write to the manager and give him
or her 28 days to decide whether to avoid the contract. If the
transaction is avoided the Family Court of New Zealand is given wide powers to
adjust the parties rights to produce a fair outcome.
5.22
Section 71(1) of the Australian Capital Territories’ Guardianship and
Management of Property Act 1991 (consolidated) provides that where a
manager has been appointed over the personal property of a person, the transaction
is not void on the ground that the person was not legally competent to enter
into the transaction. However, under section 71(2) a guardian, manager or
any person concerned in the transaction may make an application to the
tribunal, the Supreme Court or the Magistrates Court to either confirm the
transaction, declare the transaction void or adjust the rights of the parties
to the transaction.
5.23
An exception to the general principles governing contract law, discussed
in Part C above, applies in relation to contracts for necessary items. At
common law a person who sells and delivers “necessaries” to an adult without
mental capacity to contract is entitled to recover a reasonable price for such
necessaries. Section 2 of the Sale of Goods Act 1893 encapsulated
the position at common law in respect of the sale of goods. Section 2
states:
“…
where necessaries are sold and delivered to an infant, minor, or to a person
who by reason of mental incapacity or drunkenness is not competent to contract,
he must pay a reasonable price therefor. Necessaries in this section
means goods suitable to the condition in life of such infant or minor or other
person, and to his actual requirements at the time of the sale and delivery.”[396]
The necessaries rule performs a useful function
in allowing people who lack capacity to obtain independently foodstuffs and
other items required for their day to day living while ensuring that the
supplier will be reasonably recompensed but not permitted to exploit by
charging exorbitant prices.
(1)
The Concept of Necessaries
5.24
“Necessaries” is to be understood as goods and, at common law, services[397]
suitable to the condition in life of the person. Thus the concept of
necessaries may vary considerably according to the circumstances of the
particular individual. Goods such as food and drink[398]
and clothing,[399] and
services such as transport,[400] nursing
home care, accommodation[401] and
medical aid[402] have been
regarded as necessaries in certain circumstances.[403]
Necessaries do not extend, however, to luxury items.[404]
Nevertheless, it must be said that the ambit of the category of necessaries is
imprecise.[405]
Existing case-law is of limited utility in determining the issue as judicial
discussion of what constitutes necessaries has largely arisen in the context of
the parallel provision in Section 2 of the Sale of Goods Act 1893 for
contracts for necessaries entered into by minors rather than adults.
Furthermore the relevant case-law is concerned with lifestyles in the 17th
to early 20th century which have little parallel in today’s world.[406]
5.25
Where there is no “sale” in relation to goods, for example, where they
are provided on hire purchase or barter, the statutory provision on necessaries
has no application and the general principles discussed above[407]
will apply - the contract will be voidable if the other party knew or must have
known that the person lacked capacity.
(3)
Liability to Pay a Reasonable Price
5.26
The liability imposed by the necessaries rule in section 2 of the Sale
of Goods Act 1893 is to pay a reasonable price for goods sold and delivered
rather than the price agreed. The liability is quasi-contractual or
restitutionary in nature.[408] This
has led commentators to suggest that a person without capacity to contract may
not be bound by a contract for necessary goods which is purely executory in
that the goods contracted for have not been delivered.[409]
5.27
It is for the supplier to overcome the double-hurdle of proving (a) that
the goods were necessaries in the context of the circumstances of the person
lacking capacity; and (b) that the person was not already supplied with goods
or services of a similar kind.[410]
It is immaterial that the seller was unaware of the buyer’s situation: the fact
that the buyer was already adequately provided with goods of the relevant type
is sufficient for them not to be necessaries in law.[411]
The Scottish Law Commission criticised the notion that there should be an onus
on a trader to enquire whether the person with a mental disability already has
similar goods on the basis that these enquiries would be time-consuming and
could be seen as impertinent.[412]
As a result the Scottish Law Commission recommended that suppliers of goods
should be entitled to receive a reasonable price for necessaries sold and
delivered to a mentally incapable person whether or not they are actually
required by him or her at the time of sale and delivery unless the supplier
knew that they were not required.[413]
(5)
Reform in England and Wales
5.28
The Law Commission of England and Wales in its Report on Mental Incapacity[414] recommended a statutory provision applying the
necessaries rule to both goods and services so that when necessary goods and
services are supplied to a person without capacity, they must pay a reasonable
price for them.[415] This
recommendation has been taken up in Section 7 of the Mental Capacity Act
2005 which states:
“(1)
If necessary goods or services are supplied to a person who lacks capacity to
contract for the supply, he must pay a reasonable price for them.
(2)
‘Necessary’ means suitable to a person’s condition in life and to his actual
requirements at the time when the goods or services are supplied.”
5.29
The Explanatory Notes prepared by the Department of Constitutional
Affairs for the English Mental Capacity Bill describe the effect of the
provision as follows:
“…
if the milkman carries on delivering milk to the house of someone who has
progressive dementia, they can expect to be paid. If, however, a roofer
puts a completely unnecessary new roof on to that person’s house, when all that
is required was a minor repair, then the rule [on necessaries] will not apply.”[416]
F
The Equal Status Acts 2000 to 2004
5.30
The Equal Status Act 2000, as amended by Part 3 of the Equality
Act 2004 (“the Equal Status Acts”), gives protection against
discrimination in the provision of goods and services. Services are
defined broadly to include access to public places, banking and insurance
services, entertainment, facilities for refreshment and transport. The
legislation prohibits discrimination on a number of grounds, including
disability. However, section 16(2)(b) of the Equal Status Act 2000
states that treating a person differently does not constitute discrimination
outlawed by the Act “if the person is incapable of entering into an enforceable
contract and for that reason the treatment is reasonable in the particular
case”. It would appear from the wording of section 16(2)(b) that
incapacity will be judged as a question of fact rather than on the basis of the
subjective judgment of the supplier. It is permissible to refuse to do
business with an adult who does not have the capacity to understand the nature
and impact of the transaction. However, it may not be considered
reasonable to refuse to enter into a contract for necessaries[417] because
the supplier would be entitled to recover a reasonable price for the goods
despite the person’s lack of capacity.
5.31
Cases involving discrimination prohibited under the Equal Status Acts
may be referred to the Equality Tribunal. Notably, section 53 of the Equality
Act 2004 amended the definition of “complainant” in section 20 of the Equal
Status Act 2000 to allow a parent or guardian or other person acting in
place of a parent to take a complaint on behalf of a person who is “unable by
reason of an intellectual or psychological difficulty” to pursue effectively a
claim for redress. The complaint may be resolved by way of mediation led
by an equality mediation officer. If dealt with by the Equality Tribunal,
the complainant can be awarded compensation of up to the maximum amount that
can be awarded by the District Court in civil cases in contract[418] (currently
€6,250). Alternatively, the Equality Tribunal may make an order requiring
a person to take a particular course of action to remedy matters.[419]
A decision of the Equality Tribunal can be appealed to the Circuit Court where
the Court can substitute its discretion for that of the Equality Tribunal.[420]
5.32
In Dexter v NPower Plc,[421]
a case taken under the UK’s Disability Discrimination Act 1995, an agent
of a gas company refused to accept the signature of a woman on a contract for
the supply of gas and electricity without the countersignature of a
neighbour. The woman had a neurological condition which caused her to
shake but was of full mental capacity. The company’s policy that all
contracts with older people and disabled people were to be countersigned was
found to be discriminatory and unlawful under Part III of the UK’s Disability
Discrimination Act 1995. It is likely that a similar view would be
taken were such a case referred to the Equality Tribunal under the Equal
Status Acts.
(1)
A Presumption of Capacity to Contract
5.33
The rationale behind the current law on capacity to contract is a desire
to balance the potential hardship which may arise for a person with limited
ability in agreeing to transactions the implications of which they do not fully
understand against the potential hardship to another person who agrees to
provide goods or services to them. In the introduction to this chapter,[422]
the Commission alluded to a further policy goal of ensuring that persons with
limited decision-making ability maximise their capacity to live as
independently as possible, a goal which is reinforced by the provisions of the Equal
Status Acts 2000 to 2004.
5.34
The Commission believes that, rather than relying on the existing
judicial test in Hart v O’Connor[423] of whether the other party had reason to suspect that
the person may lack capacity, the law relating to capacity to contract should
be governed by a rebuttable legal presumption of capacity to contract. A
presumption of capacity to contract is in line both with the general
presumption of capacity and the functional approach to capacity which the
Commission has embraced in this Consultation Paper.[424]
Approaching capacity to contract in this manner allows for a consistent
approach to capacity issues.
5.35
The effect would be that where a person rebutted the presumption of
capacity to contract, the contract would be void rather than voidable.
This would mean no longer deciding that a contract is voidable based on a test
of whether a lack of capacity would have been reasonably apparent to the other
party from the circumstances. The Commission considers that any potential
hardship to good faith suppliers who had no reason to suspect a lack of
capacity would be considerably tempered by the addition of a revised ‘necessaries
rule’ requiring persons lacking contractual capacity to pay a reasonable sum
for goods and services supplied to them for daily living.[425]
Therefore it would generally only be where goods or services contracted for are
out of the ordinary that the issue of capacity would need to receive real
consideration. Furthermore, while not strictly concerned with capacity,
the equitable doctrines concerning unconscionable bargains and undue influence
may be of assistance in relation to contracts with vulnerable adults where the
other party has abused a position of superior bargaining power.[426]
5.36
The Commission envisages that a presumption of capacity to contract
would be subsumed within the general statutory presumption of capacity which
the Commission recommended in Chapter 3.
5.37
The Commission recommends that a presumption of capacity to contract
should form part of a statutory presumption of capacity.
5.38
The onus would be on the party disputing contractual capacity to rebut
the presumption of contractual capacity on the balance of probabilities.
In the Consultation Paper on Law and the Elderly[427] the Law Reform Commission recommended that the system of
wardship be replaced by the appointment of a personal guardian or the making of
one-off provision by means of an intervention or services order.[428]
A functional approach to capacity would mean that while the existence of a
guardianship order, services order or intervention order could be adduced as
supporting evidence of incapacity to contract, the making of such an order
would not in itself be decisive of the issue.
(2)
Adjudicating on Contractual Capacity
5.39
Building on the guardianship framework set out in the Consultation
Paper on Law and the Elderly,[429] the proposed capacity legislation could provide that any
party to the contract, a personal guardian or other person connected with a
party in respect of whom a lack of understanding is alleged[430]
could refer a contract to the Office of the Public Guardian. Where both
sides agree a mediator could be appointed by the Public Guardian. If the
matter is not resolved by mediation, the Public Guardian could be given power
to examine the case and
(a) declare
that the transaction is binding on both parties; or
(b)
declare the transaction void and make any adjustment to the rights of the
parties which it considers just having regard to the circumstances of the case.[431]
The decision of the Public Guardian would be
subject to an appeal to the Circuit Court involving a full re-hearing of the
case. Giving the proposed Public Guardian this adjudicative function in
relation to contractual capacity would be in line both with the accepted role
of quasi-judicial bodies in Ireland, (such as the Equality Tribunal, the
Employment Appeals Tribunal and the Private Residential Tenancies Board), and
current trends in favour of alternative dispute resolution generally.[432]
Furthermore, in cases where a lack of contractual capacity is determined,
empowering the Public Guardian with a broad discretion to impose a just
solution would enable the difficult question of deciding how the loss should
fall to be determined in as just a manner as possible in the particular
circumstances of the case.
5.40
The Commission recommends that the proposed capacity legislation
should provide that a contract purportedly entered into by an adult whom it is
alleged lacked contractual capacity may be referred to the Public Guardian by a
party to the contract, a personal guardian or other person connected with a
person in respect of whom it is alleged there was a lack of contractual
capacity. The Commission further recommends that on such a contract being
referred to it, the Public Guardian could, with the consent of the parties,
refer the matter to mediation, or the Public Guardian could examine the
matter. The Public Guardian should be given power to declare the contract
binding on both parties or to declare the contract void for lack of capacity
and to make any adjustment to the rights of the parties considered just in the
circumstances. A decision of the Public Guardian could be appealed to the
Circuit Court and such an appeal would involve a full rehearing of the matter.
5.41 The
Commission is in favour of the retention of the necessaries rule as a mechanism
for fairly dividing rights and duties between suppliers and consumers who lack
full decision-making capacity in relation to the purchase of everyday goods and
services. Nevertheless we are conscious that the application of the
necessaries rule is, in some respects, not free from doubt. We are
therefore of opinion that a reformulated provision should be incorporated in
the capacity legislation proposed by this Consultation Paper. This would
accord with the Council of Europe’s recommendation that “[w]henever possible
adults should be enabled to enter into legally effective transactions of an
everyday nature.”[433]
5.42 First,
such provision should be expressed to apply to both goods and services.
Secondly, in order to avoid any doubt in relation to executory contracts, we submit
that the provision should be expressed to apply where goods or services have
been supplied (it is envisaged that this would also cover partly executed
contracts - where part delivery of goods or services has occurred).
Thirdly, a statutory clarification of the application of the necessaries rule
to adults without the capacity to enter into such contracts would also afford a
useful opportunity to formulate such a rule in modern terminology which is more
easily understood. “Necessaries” could be defined in terms of goods and
services supplied which are suitable to the person’s reasonable living
requirements but excluding goods and services which could be classed as luxury
in nature.
5.43 The
Commission recommends that the proposed capacity legislation should provide
that an adult who lacks the capacity to enter into a particular contract is
nonetheless obliged to pay the supplier a reasonable amount for necessaries
supplied.
5.44
“Necessaries” should be statutorily defined as goods and services
supplied which are suitable to the person’s reasonable living requirements but
excluding goods and services which could be classed as luxury in nature.
6.
Chapter 6
personal relationships
A
Introduction
6.01
Entering into personal relationships, marrying and having children are
fundamental aspects of adult life. However, where a person has limited
decision-making ability, the law treads a difficult line in attempting to
strike a balance between the primary need to protect vulnerable individuals
from exploitation and the need to respect an individual’s autonomy and capacity
to engage in voluntary and freely chosen relationships. To achieve such a
balance is undoubtedly a complex task. The Commission acknowledges that
the law should be responsive to changes in society and social
perspectives. Historically, the law has approached the personal
relationships of persons with limited decision-making ability with a form of
benign paternalism based on the concept of what is considered to be in their
best interests. However, while modern disability dialogue has sought to
move away from paternalism in favour of a social rather than a medical view of
disability,[434]
the issue of personal relationships for persons with limited decision-making
ability has yet to be widely debated in this country.
6.02
Part B of this chapter considers applicable constitutional and human
rights considerations; Part C examines the law on capacity to consent to sexual
relationships; Part D examines the law on capacity to marry; and Part E
considers non-consensual sterilisation.
B
Constitutional and Human Rights Considerations
6.03
Article 40.1 of the Constitution, which deals with equality before the
law, prohibits invidious or unjustifiable discrimination by the State between
different classes or persons but expressly permits the State in its enactments
to have due regard to differences of capacity.[435]
Furthermore, it has been recognised by the Supreme Court in Re a Ward of
Court (withholding medical treatment) (No.2)[436] that a loss of mental capacity does not result in any
diminution of a person’s personal rights under Article 40.3.1° and Article
40.3.2° of the Constitution. The courts have recognised that these
personal rights include the right to privacy,[437]
including self-determination[438] and the
right to marry and found a family.[439]
6.04
The right to privacy was described by Hamilton P in Kennedy v Ireland[440] as “one of the fundamental personal rights of the
citizen which flow from the Christian and democratic nature of the State”.[441]
However, the courts have concluded that the right to privacy is not unqualified[442]
and may be restricted by the constitutional rights of others, by the
requirements of the common good, and by public morality.[443]
6.05
Nor has the right to marry been interpreted by the courts as absolute or
unqualified in nature.[444] The
right to procreate or to beget children was considered in Murray v Ireland[445] where Costello J considered it to be an unenumerated
right under Article 40.3. As with all personal rights, it is not an
absolute right, and has only received judicial consideration in the context of
married partners.
(2)
The European Convention on Human Rights
6.06
The European Convention on Human Rights Act 2003 requires courts
to take into account relevant jurisprudence on the European Convention for
the Protection of Human Rights and Fundamental Freedoms (‘ECHR’).[446]
In dealing with matters involving intimate aspects of private life, the
jurisprudence of the European Commission on Human Rights[447]
and European Court of Human Rights has given a narrow margin of appreciation[448]
to national authorities.[449]
Article 8 and Article 12 of the ECHR are particularly relevant in the current
context.
(a)
Article 8 of the ECHR
6.07
Article 8 states:
“1. Everyone has
the right to respect for his private and family life, his home and
correspondence.[450]
2. There shall be no interference by a
public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the
country, for the protection of the rights and freedom of others.”
In Bruggemann and Scheuten v Germany[451]
the European Commission on Human Rights stated:
“The
right to respect for private life is of such a scope as to secure the
individual a sphere within which he can freely pursue the development and
fulfilment of his personality. To this effect, he must also have the
possibility of establishing relationships of various kinds, including sexual,
with the other person. In principle whenever the state sets up rules for
the behaviour of the individual within this sphere, it interferes with respect
for private life and such interference must be justified in the light of
Article 8(2).”[452]
(b)
Article 12 of the ECHR
6.08
Article 12 of the ECHR provides: “Men and women of marriageable age have
the right to marry and found a family, according to the national laws governing
the exercise of this right.”[453]
This right is expressly subject to national law governing the exercise of this
right which must not substantially interfere with the right to marry. In Hamer
v UK,[454] a case concerning the refusal of the UK authorities to
allow a convicted prisoner to marry in prison or to grant him temporary release
in order to marry, the European Commission of Human Rights indicated
that national law may not deprive “a person or category of persons of full
legal capacity of the right to marry”.[455]
Therefore the prisoner’s rights under Article 12 were found to have been
violated.
C
Capacity to Consent to Sexual Relationships
6.09
This Consultation Paper is concerned with law on capacity as it impacts
on decision-making capacity in a civil law context. However, when
considering personal relationship issues, capacity to enter into a sexual
relationship is a matter which is ruled by the criminal law. Therefore of
necessity a consideration of capacity issues in relation to sexual
relationships necessitates a discussion of criminal law and the appropriate
function of the criminal law in this area. The criminal law requires that
to enter into a sexual relationship, each of the parties (a) is of age, and (b)
consents to the act. In relation to persons of age with limited
decision-making ability, consent, and more particularly, capacity to consent to
a sexual relationship is a key issue.[456]
The development and reform of the law in this area is discussed below.
6.10
When one person touches another person in a sexual manner without the
other person’s consent, a sexual assault[457]
or aggravated sexual assault[458] may be
committed. Where a person has penetrative sexual relations with a person
over the age of consent who lacks the mental capacity to consent, this may
amount to rape where the person knows or is reckless as to whether the other
person consents.[459]
6.11
“Consent” is not defined in legislation dealing with rape or sexual
assault but its existence is to be objectively determined.[460]
However, section 9 of the Criminal Law (Rape) (Amendment) Act 1990 states
that failure or omission to offer resistance does not of itself constitute
consent to the act. This means that submission without resistance will
not in itself amount to evidence of consent in relation to a sexual assault
offence. A person will not have the capacity to consent if they do not
understand the nature and consequences of the act. In R v Flattery[461]
a man who had sexual intercourse with the victim under the pretence that he was
performing a surgical operation for her benefit was convicted of rape.[462]
(2)
Sexual Acts with Adults with Limited Decision-Making Ability
(a)
Section 4 of the Criminal Law Amendment Act 1935
6.12
Prior to relatively recent times, the archaic terminology of section 4
of the Criminal Law Amendment Act 1935[463]
(the “1935 Act”) provided that a person who had sexual intercourse with a woman
or girl with knowledge at the time that she was “an idiot, or an imbecile or is
feeble-minded”[464] could be
sentenced to up to two years in prison. Section 254 of the Mental
Treatment 1945 increased the maximum penalty to five years’ penal servitude
where the offender under section 4 of the Criminal Law Amendment Act
1945 was a carer or was in the management or employment of the mental
institution where the victim was a patient. [465]
(b)
The Law Reform Commission Report on Sexual Offences Against the Mentally
Handicapped
6.13
The need for modernisation of the law in this area was addressed in the
Commission’s 1990 Report on Sexual Offences Against the Mentally Handicapped[466]
which followed on from previous recommendations in the Commission’s Consultation
Paper on Rape[467] and Report
on Rape and Allied Offences.[468] In the Commission’s Consultation Paper on
Rape, section 4 of the 1935 Act was regarded by the Commission as
“expressed in the language of a former age”[469]
and the Commission’s subsequent Report on Rape and Allied Offences
recommended that the offensive wording in section 4 of the 1935 Act[470]
should be replaced with words such as “mental incapacity” or “mental handicap”.[471]
The Commission notes that contemporary disability terminology would now favour
the use of the term ‘intellectual disability’ in preference to ‘mental
handicap’.[472]
6.14
The subject matter was revisited in greater depth in the Commission’s Report
on Sexual Offences Against the Mentally Handicapped[473] which laid emphasis on two distinct principles in
relation to the law’s function regarding sexual behaviour and persons with an
intellectual disability:
(i)
The law should respect
the right of such persons to sexual fulfilment;
(ii)
The law should, so far
as practicable, protect such persons against sexual exploitation. [474]
6.15
The Commission regarded the language of section 4 of the 1945 Act as
“both offensive and out of date” such as would justify the repeal of the
section and its replacement with a more appropriately worded section.[475] In
so doing the Commission went further than its previous recommendation that the
section should be reformulated with more acceptable terminology. The
Commission acknowledged however that the categorisation of persons who should
be protected was “a question of considerable difficulty”.[476]
Ultimately, the Commission recommended that section 4 of the 1935 Act be
repealed and replaced with an indictable offence of sexual intercourse with “a
person with mental handicap, or suffering from mental illness which is of such
a nature or degree that the person is incapable of guarding himself against
exploitation”.[477] A
parallel offence in respect of anal penetration and other acts of sexual
exploitation was also recommended.[478]
The Commission entered a caveat to the effect that a sexual relationship
between persons suffering from mental handicap or mental illness should not in
itself constitute an offence:
“It
is possible that a sexual relationship between two people suffering from mental
handicap or mental illness could result in the conviction of either or both ….
This would clearly be contrary to the underlying principles which, in our view,
should inform the proposed legislation.
We
accordingly recommend that no act of vaginal sexual intercourse, or anal
penetration or other proscribed sexual activity should constitute an offence
where both participants are suffering from mental handicap or mental illness as
defined, unless the acts in question constitute a criminal offence by virtue of
some other provision of the law.” [479]
(3)
Section 5 of the Criminal Law (Sexual Offences) Act 1993
6.16
Following the Commission’s Report on Sexual Offences Against the
Mentally Handicapped, section 5 of the Criminal Law (Sexual
Offences) Act 1993 (the “1993 Act”) reformed the law in this area. As recommended by the Law Reform Commission in the Report
on Sexual Offences Against the Mentally Handicapped,[480] the 1993
Act repealed section 4 of the 1935 Act.[481]
Section 5 of the 1993 Act introduced a new offence which applies where a person
has or attempts to have sex[482] with a
person who is “mentally impaired” unless they are married to each other.[483]
It is also an offence for a male person to commit or attempt to commit an act
of gross indecency with another male.[484]
6.17
A defence is available to a person who did not know and had no reason to
suspect that the person was “mentally impaired”.[485]
“Mentally impaired” is statutorily defined as :
“suffering
from a disorder of the mind, whether through mental handicap or mental illness,
which is of such a nature or degree as to render a person incapable of living
an independent life or[486] of
guarding against serious exploitation.”[487]
6.18
Prosecutions for an offence under section 5 of the 1993 Act are at the
discretion of the Director of Public Prosecutions.[488]
The Department of Justice in its Discussion Paper on sexual offences[489]
noted that prosecutorial discretion would prevent inappropriate prosecutions.[490]
The English Court of Criminal Appeal judgment in R v Hall[491] suggests that, in the event of a prosecution, the
question of whether a person was “mentally impaired” would be a matter for the
jury to decide.
6.19
The Commission regards section 5 of the 1993 Act and the use of the term
“mentally impaired” as an advance on the outmoded language and scope of the
pre-existing section 4 of the Criminal Law Amendment Act 1935.
Nevertheless, viewed from current perspectives on disability, it is submitted
that both the concept and definition of “mental impairment” in section 5 of the
1993 Act are unsatisfactory. In relation to the definition of “mentally
impaired” (a term which may in itself be considered objectionable),[492]
the Commission reiterates its view expressed in the Report on Sexual
Offences Against the Mentally Handicapped[493] that the test of ability to guard against serious
exploitation (the second test in section 5(5) of the 1993 Act) constitutes a
better yardstick of capacity to consent than ability to lead an independent
life (the first test in section 5(5) of the 1993 Act) because some degree of
dependence would not necessarily preclude an ability to consent.[494]
6.20
The Commission notes that a regrettable effect of section 5 of the 1993
Act is that outside a marriage context a sexual relationship between two
“mentally impaired” persons may constitute a criminal offence because there is
no provision for consent as a defence in respect of a relationship between adults
who were both capable of giving a real consent to sexual intercourse.[495]
The operation of section 5 of the 1993 Act as a potential bar to a mutually
consensual sexual relationship with another person with a limited
decision-making ability runs contrary to the Commission’s recommendation in the
Report in Sexual Offences Against the Mentally Handicapped that a
relationship between persons with a decision-making disability should not in
itself be prohibited.[496] Fear
of facilitating the commission of a criminal offence on the part of parents and
carers may prevent relationships between two adults with intellectual
disability developing even where they have capacity to consent and there is no
element of exploitation.
6.21
O’Malley, commenting on the need for the criminal law to achieve the
appropriate balance between paternalism and autonomy, stated that:
“it
may swing the balance too far in the direction of depriving mentally ill or
disabled persons of the right to a sexual life compatible with their physical,
mental and emotional capacities. The policy adopted in s.5 of the Act of
1993 may be faulted on this ground. Even allowing for the tacit
assumption that prosecutorial discretion will diminish the incidence of ‘hard
cases’, the section fails to reflect the right of persons who are mentally
impaired (to use its own language) to have a sexual life.”[497]
In the Commission’s Report
on Sexual Offences against the Mentally Handicapped[498] the following comments of MJ Gunn were quoted in the
context of the requirements of Article 8 of the European Convention on Human
Rights:
“If
sexual development and reproduction are to be possible, it must be legally
acceptable for people with a mental handicap to enter into sexual
relationships. Wholly unreasonable restrictions on such relationships
would appear to fall foul of article 8, ECHR, where the right to private life,
including sexual life, can only be restricted if the conditions in article 8(2)
are fulfilled. It, therefore, needs to be considered whether the
restrictions which are imposed by English criminal law are ‘ … for the
protection of health or morals, or for the protection of the rights and freedom
of others’.
English
criminal law may hinder and perhaps prevent sexual relationships of people with
mental handicap through the offences created by the Sexual Offences Acts
1956-76.”[499]
6.22
The Commission is of the view that if the matter arose for
consideration, section 5 of the 1993 Act may be considered to breach Article 8
of the ECHR by disproportionately interfering with a person’s right to respect
for his private life under Article 8 of the ECHR[500]
and not to fall within the State’s narrow “margin of appreciation” in matters
of this kind. In particular, the Commission notes that in previous ECHR
cases concerning the criminalisation of consensual homosexual acts in breach of
Article 8, a practice of non-enforcement by the national authorities was deemed
irrelevant by the European Court of Human Rights.[501]
6.23
In Australia, it was considered that a blanket ban on all sexual
contact would not properly allow for the sexual rights of persons with impaired
mental functioning.[502] This
thinking is also evident in recent reforming legislation in the UK. The Sexual
Offences Act 2003 contains a number of specific offences relating to sexual
activity with a person with a mental disorder (which includes a learning
disability) who “lacks the capacity to choose whether to agree to the touching
(whether because he lacks sufficient understanding of the nature or reasonably
foreseeable consequences of what is being done or for any other reason)” or is
unable to communicate such a choice.[503]
Capacity to consent is therefore articulated in terms of functional capacity to
understand the nature and consequences of the act. The offence requires
the perpetrator to know or be reasonably expected to have known that because of
a mental disorder the other person was unlikely to be able to refuse.
6.24
The law’s incursion on the sexual behaviour of adults with limited
decision-making ability requires a careful balancing exercise in order to
protect vulnerable adults from abuse while also respecting sexual autonomy
where real consent is present. While the Commission commends the
protective aim of Section 5 of the Criminal Law (Sexual Offences) Act 1993[504]
in relation to adults who are vulnerable to sexual exploitation, we are
nevertheless concerned that a blanket prohibition on relationships between the
“mentally impaired” ignores the circumstances in which such relationships can
consensually occur, where no exploitation has taken place. Furthermore,
as currently configured, section 5 may breach Article 8 of the ECHR.
6.25
The first potential option for reform in this area would be to amend
section 5 of the Criminal Law (Sexual Offences) Act 1993 to replace the
concept of “mental impairment” with more acceptable language by re-working the
definition of the protected class in line with modern disability language.[505]
This would conform with the recommendation of the Commission on the Status of
People with Disabilities that legal definitions of disability should be
reviewed and offensive language replaced with “language which reflects the
right of people with disabilities to be treated as full citizens and to be
included in all aspects of society.”[506]
6.26
A more fundamental option for reform would be to amend section 5 of the Criminal
Law (Sexual Offences) Act 1993 in order to ensure that relationships
between adults with limited decision-making ability would be lawful where there
is real informed consent. The UK Sexual Offences Act 2003[507] contains a specific functional concept of lack of
capacity to consent in relation to persons with limited decision-making ability
articulated as an absence of sufficient understanding of the nature or
reasonably foreseeable consequences of the act or an inability to communicate
choice.[508] Such
a reform would be designed to continue the protective function of the criminal
law in this area for adults who do not have the capacity to consent while
ensuring that persons with limited decision-making ability are not unfairly
precluded from relationships of a sexual nature where they have the requisite
understanding of what a sexual relationship entails. Undoubtedly the
promotion of capacity to consent to sexual relationships is closely linked to
the provision of sex education to young adults with limited decision-making ability
which is pitched at an appropriate level to their capacity.
6.27
It is clear that this is a complex area where law and society’s views
are not settled. The Commission therefore finds it appropriate to invite
views on reform in this area.
6.28
The Commission invites views in relation to the reform of section 5
of the Criminal Law (Sexual Offences) Act 1993. In particular,
views are invited as to whether the offence should be re-modelled so that it
would be an offence to have or attempt to have sexual intercourse or buggery
with a person who lacked capacity to consent to the relevant act at the time
because they did not understand the nature or reasonably foreseeable
consequences of the act or could not communicate their consent or lack of
consent.
6.29
The classic common law statement of the nature of the contract of
marriage is that of Lord Penzance in Hyde v Hyde[509] where he described it as “the voluntary and permanent
union of one man and one woman to the exclusion of all others for life.”[510]
Legally, marriage is a civil contract which creates reciprocal rights and
duties between the parties and which establishes a status which is
constitutionally protected by Article 41.3.1° of the Constitution.[511]
Once solemnised, a marriage is presumed valid until the contrary is established.[512]
In Ireland, a right to marry has been recognised as one of the unenumerated
personal rights under Article 40.3.1° of the Constitution[513]
though not, however, an absolute right.[514]
6.30
In Ireland, the formalities (including the required age) in relation to
marriage are set out in statute while the issue of capacity to marry[515]
remains a matter of common law. Section 31(a) of the Family Law Act
1995 allows persons over 18 to marry.[516]
(1)
Understanding the Nature of Marriage
6.31
Apart from observing the necessary formalities required to effect a
valid marriage, the free consent of both parties is a prerequisite to a valid
marriage. As well as requiring an exercise of independent will, ‘informed
consent’ means that each party must have an understanding of the nature and
responsibilities of marriage at the time of marriage otherwise the marriage is
void. In certain circumstances an adult with limited decision-making
ability may not be in a position to give informed consent to marriage.
The onus of proving that a person did not understand or was incapable of
understanding the nature and consequences of the marriage ceremony rests on the
person asserting this.[517]
There is no presumption that a person with an intellectual disability or mental
disorder does not have capacity to marry.[518]
However, a person who is a Ward of Court may not marry.[519]
6.32
It is clear that traditionally the courts have not pitched the required
understanding of the nature of marriage at a high level. As Hannen P
observed in Durham v Durham:[520]
“the
contract of marriage is a very simple one, which does not require a high degree
of intelligence to comprehend. It is an engagement between a man and
woman to live together, and love one another as husband and wife, to the
exclusion of all others.”
The low level of understanding required for
capacity to consent to marriage is illustrated by Re Park[521]
where a man who was deemed unfit to execute a detailed will was found to
have the capacity to marry.[522]
6.33
Sheffield City Council v E[523]
concerned a 21 year old woman who was assessed as functioning at the level of
13 year old who wanted to marry a 37 year old man with a history of sexually
violent crimes. The local authority brought proceedings in order to
prevent them from marrying on the basis that she lacked the capacity to
marry. A preliminary issue arose as to the correct test to be employed in
assessing capacity to marry.
6.34
The authorities on capacity to marry were summarised by the Court in
four propositions:
(i)
It is not enough that
someone appreciates that he or she is taking part in a marriage ceremony or
understands its words.
(ii)
He or she must
understand the nature of the marriage contract.
(iii)
This means that he or
she must be mentally capable of understanding the duties and responsibilities
that normally attach to marriage.
(iv)
That said, the contract
of marriage is in essence a simple one, which does not require a high degree of
intelligence to comprehend.[524]
6.35
Munby J stated that the essence of a contract of marriage is:
“an agreement between husband and wife to live
together, and to love one another as husband and wife, to the exclusion of all
others. It creates a relationship of mutual and reciprocal obligations,
typically involving the sharing of a common home and a common domestic life and
the right to enjoy each other’s society, comfort and assistance.”[525]
In terms of policy, Munby J stated:
“There are many people in our society who may
be of limited or borderline capacity but whose lives are immensely enriched by
marriage. We must be careful not to set the test of capacity to marry too
high, lest it operate as an unfair, unnecessary and indeed discriminatory bar
against the mentally disabled.”[526]
6.36
The Court therefore rejected a submission that capacity should be
assessed in relation to the particular marriage proposal in question.
Rather, in assessing a person’s capacity to marry, the Court held that it is
not concerned with the wisdom of their marrying in general nor with the wisdom
of marrying the particular person contemplated:
“The implications for A of choosing to marry B
rather than C may be immense. B may be a loving pauper and C a
wife-beating millionaire. But this has nothing to do with the nature of
the contract of marriage into which A has chosen to enter. Whether A
marries B or marries C, the contract is the same, its nature is the same, and
its legal consequences are the same. The emotional, social, financial and
other implications for A may be very different but the nature of the contract
is precisely the same in both cases.” [527]
6.37
Lack of informed consent also encompasses the concept of one party
failing to disclose a material fact to the other prior to the marriage.
The test for ‘informed consent’ is a subjective one. In O’M(M) v
O’C(B)[528] the Supreme Court granted the petitioner a nullity
decree because she had not been informed before the marriage that her husband
had attended a psychiatrist for 6 years and she stated that she would not have
married him had she known of this.
(2)
Entering a Caveat Concerning a Person’s Capacity to Marry
6.38
If there is a concern as to a person’s capacity to marry, a caveat may
be entered with a Registrar of Marriages before the marriage takes place to
prevent a certificate or licence being granted. In practice, capacity is
more likely to be called into question after the event in subsequent nullity
proceedings.
6.39
Under section 23 of the Marriages (Ireland) Act 1844[529] any person, on payment of a nominal fee, may enter a
written caveat with the Registrar against the granting of a certificate or
licence in respect of a person named in it. The caveat must state the
ground of objection which, it is contended, constitutes an impediment to
marriage. Where a caveat is lodged, the Registrar cannot issue a
certificate or licence to the person named in the caveat unless the Registrar
is satisfied that the objection is unfounded or the caveat is withdrawn by the
person who lodged it.[530] If
the Registrar refuses to grant a marriage certificate or licence, the person
applying for it can appeal to an t-Ard Chláraitheoir. If a caveat comes
to an t-Ard Chláraitheoir for consideration which is premised on the
contention that a party does not have the capacity to consent to marriage, an
t-Ard Chláraitheoir may seek the advice of a psychiatrist or psychologist in
relation to a person’s capacity to marry.
6.40
The Civil Registration Act 2004 represents the first major reform
of civil registration law and involves the repeal of the Marriages (Ireland)
Act 1844. Section 58 of the Civil Registration Act 2004,[531]
replaces section 23 of the Marriages (Ireland) Act 1844 with a similar
procedure for entering a caveat by which a person may lodge an “objection” in
writing with a Registrar at any time before the solemnisation of a marriage.[532]
A non-technical objection will be referred on to an t-Ard Chláraitheoir for investigation
as to whether there is an impediment to the intended marriage. If there
is an objection, steps are to be taken to prevent the solemnisation of the
marriage and its registration. An appeal against a decision by an
t-Ard Chláraitheoir may be taken to the Circuit Family Court by a party to the
proposed marriage.
6.41
The law of nullity lays down the conditions under which a marriage
contract may not be valid and binding at the date of the marriage.[533]
Either party to a putative marriage may commence nullity proceedings in the
Circuit Court or High Court seeking a declaration of nullity.[534]
The right to marital privacy cannot be invoked to prevent an inquiry into the
validity of a marriage.[535] A
declaration of nullity has the effect that a marriage that is null and void is
deemed never to have existed.[536]
Nullity proceedings are adversarial rather than inquisitorial in nature.[537]
The onus of establishing lack of consent lies on the petitioner who must
establish his or her case on the balance of probabilities.[538]
A person may obtain a decree of nullity on the basis of their own lack of
capacity to consent. In DC (Orse DW) v DW[539] a decree was granted to a person with schizophrenia.
6.42
In JS v CS[540] Budd J
described the court’s role in relation to this ground of nullity as follows:[541]
“The
court may have to explore not only the capacity of the party to enter into the
appropriate marital relationship but also the party’s capacity to sustain this
relationship. Indeed, it may well be that a party who was incapable at
the time of the marriage of forming a meaningful marital relationship, may,
with medical help, stand a realistic prospect of being cured so that the
capacity to form the required relationship may be restored or acquired.
On the other hand, the affliction may have brought about such an irretrievable
breakdown of relationship that even if the party’s condition is ameliorated,
nevertheless the marital relationship is irredeemably destroyed … In view of
the strong public interest which the State has in the preservation of existing
marital unions, it may be that in an appropriate case, much consideration will
have to be given to the prospect of curative treatment. There is also the
peculiar anomaly that a party may be able to obtain a decree of nullity because
of the existence of an incapacitating antecedent illness, but will be denied
relief if the illness causing the inability came after the marriage.”
(a)
Medical Evidence
6.43
Where capacity is at issue in nullity proceedings, one or two medical
inspectors who may be psychiatrists or psychologists may be appointed to carry
out a psychiatric examination of the relevant party or parties and to report in
writing to the court.[542] A
medical inspector is entitled to have access to relevant medical and
psychiatric records.[543]
While the medical evidence is important, the determination of capacity to marry
in nullity cases is a judicial function. In McG v F[544] the Supreme Court held that it was not open to a medical
inspector to interview third parties such as friends and relatives as a matter
of course as this would amount to a preliminary hearing. However, Denham
J stated obiter that in appropriate circumstances a court could give
additional authority to a medical inspector to interview third parties with the
consent of both parties to the proceedings.[545]
(b)
The Effect of Mental Illness at Time of Marriage
6.44
If a person was suffering from mental illness at the time of the
marriage and was incapable of understanding the nature of the contract into
which they were entering, a decree of nullity can be obtained. In ME v
AE[546] the respondent was suffering from paranoid schizophrenia
which prevented him from giving full, free and informed consent. In JS
v JM[547] Lavan J
granted a decree of nullity to a petitioner whose wife had been suffering from
depression and schizo-affective illness at the time of her marriage.
(c)
Ability to Enter and Sustain a Normal Marital Relationship
6.45
A person’s capacity to appreciate the nature of the contract of marriage
can be distinguished from their capacity to undertake the obligations of
marriage, that is, their ability to enter into and sustain a normal
marital relationship. In RSJ v JS[548]
Barrington J stated that it was “impossible to imagine any form of meaningful
marriage where one of the parties lacks the capacity of entering into a caring,
or even a considerate relationship with the other.”[549]
Therefore if it could be shown that at the date of the marriage, one party,
through illness, lacked the capacity to form a considerate or caring
relationship with their spouse, this would be a ground on which a decree of
nullity might be granted. This reasoning was approved by Costello J in D
v C[550] where he observed that “the lifelong union which the law
enjoins requires for its maintenance the creation of an emotional and
psychological relationship between the spouses.”[551] Where a party to a marriage lacks the capacity to
enter into and sustain a normal marital relationship, the marriage will be
voidable.[552] Thus
where a party has a psychiatric illness (or, in certain instances, extreme
emotional immaturity) which is of such severity as to prevent them from
entering into and sustaining a normal caring marriage relationship, this may be
sufficient to obtain a declaration of nullity.[553]
6.46
The length of the putative marriage is immaterial unless the court is of
the view that the petitioner approbated the marriage after realising that it
may be voidable. Where a mental illness such as bipolar disorder is
latent at the time of the marriage but later manifests itself, it would appear
that this cannot be regarded as affecting the person’s ability to enter into a
marriage and although it may later affect their ability to sustain the marriage
this would not justify a declaration of nullity.[554]
Indeed where it is clear that a mental illness can be controlled with
medication this may render a party capable of sustaining a marriage which would
not be the case in the absence of treatment.[555]
6.47
In D v C[556] Costello J held that the husband’s manic depression
(bipolar disorder) before, during and after the marriage severely impaired his
capacity to form and sustain a normal marriage. The marriage was ruled to
be voidable rather than void. However, temperamental incapacity alone has
not been regarded as sufficient.[557]
In certain cases, the absence of a recognised psychiatric illness has resulted
in a declaration of nullity being refused.[558]
The decision of the Supreme Court in UF v JC[559]
established that it was not necessary that the grounds of relief “should be
confined to advances and knowledge which can be placed before the court, as
strictly coming within the definition of psychiatric medicine.”[560]
It was sufficient to show that the relevant incapacity “arose from some other
inherent quality or characteristic which could not be said to be voluntary or
self-induced.”[561] This opened the door to applications
based on emotional immaturity. In PC v VC[562]
it was held that the parties had a mutual incapacity relative to each
other. This case has been described as a high watermark in the law of
nullity.[563]
Evidence that this ground of nullity may have receded from its high
watermark is evident in JWH v GW[564] where emotional immaturity alone was held by the High
Court to be insufficient to preclude the formation of a valid marriage.
(4)
The Marriage of Lunatics Act 1811
6.48
The Marriage of Lunatics Act 1811 was passed “to prevent the
marriage of lunatics”. Its effect is to render void a marriage contracted
by a person found to be a “lunatic” by inquisition. The Act remains on
the statute book[565]
and in modern times its effect is to render void a marriage by a person who has
been made a Ward of Court[566] unless
they have been discharged from wardship. This ignores the fact that an
individual who has been made a Ward of Court may be able to understand the
nature of the marriage contract.[567]
The continued applicability in Ireland of the 1811 Act was confirmed in the Civil
Registration Act 2004. Under section 58(11) of the Civil
Registration Act 2004,[568] an
objection on the ground that a marriage would be void by virtue of the Marriage
of Lunatics Act 1811 must be accompanied by a certificate of a registered
medical practitioner supporting the objection. This does not resolve the
difficulty that a reading of the Marriage of Lunatics Act 1811 suggests
that any marriage by a Ward of Court will be void even if conducted during a
lucid interval.[569]
6.49
The Commission recognises that there is a well-established jurisprudence
in the area of nullity law which sets out the capacity requirements for
marriage in terms of an ability to understand the nature of marriage and the
ability to sustain a normal, caring marital relationship. It is not
proposed to interfere with this.
6.50
Given the safeguards provided by the law of nullity to protect those
suffering from mental illness or impairment, the Commission regards the Marriage
of Lunatics Act 1811 as anachronistic and out of step with modern views of
mental disability and a functional approach to capacity issues. The 1811
Act may breach the right to marry under Article 12 of the ECHR[570]
and its repeal would also be consistent with the functional, issue-specific
approach to capacity put forward in this Consultation Paper. The
Commission is of the view that the Marriage of Lunatics Act 1811 serves
no useful purpose and on balance we consider that it should be repealed.
6.51
The Commission recommends that the Marriage of Lunatics Act 1811
be repealed.
6.52
Sterilisation is a surgical method of rendering a male or female
incapable of reproduction.[571]
It is in most instances an irreversible procedure. It would appear that
there is no precise information available as to the incidence of sterilisation
of people with limited decision-making ability in Ireland.[572]
The Commission on the Status of People with Disabilities stated in its 1996
report:
“It
is assumed that the sterilisations which do take place are authorised on the
basis of medical and psychological opinion and with parental agreement.
It is not known to what extent people with disabilities are consulted about
such decisions.
This
is a profoundly complex question with ethical, social, economic and legal
implications. It is a question to be faced in the future, given the
developing emphasis on people’s rights and changing attitudes.”[573]
6.53
Sterilisation is an issue which could potentially be ruled on as part of
the parens patriae jurisdiction for the protection of vulnerable persons
including adults with a mental disability.[574]
However, it would appear that to date the issue of non-consensual sterilisation
has not come before the courts in this country.
6.54
In other jurisdictions such as Canada and the United States, systematic
non-consensual sterilisation of disabled persons originated in eugenics theory
which is unacceptable today.[575] A distinction has been drawn in the literature
and case law between therapeutic and non-therapeutic sterilisation.
Essentially therapeutic sterilisation is required for the person’s mental or
physical health while non-therapeutic sterilisation is used for contraceptive
purposes.[576]
6.55
In the seminal Canadian case on sterilisation, Re Eve,[577] the Canadian Supreme Court was asked to consent to a
mother’s application for a sterilisation operation for her daughter who had a
mild to moderate intellectual disability. The reason the operation was
sought was to prevent pregnancy rather than any medical necessity. La
Forest J, delivering the decision of the Canadian Supreme Court said:[578]
“The
grave intrusion on a person’s right and the certain physical damage that ensues
from non-therapeutic sterilisation without consent, when compared to the highly
questionable advantages that can result from it, have persuaded me that it can
never safely be determined that such a procedure is for the benefit of that
person. Accordingly, the procedure should never be authorized for
non-therapeutic purposes under the parens patriae jurisdiction.”
Accordingly the application for consent to
sterilisation was refused.
6.56
In contrast to the approach in Re Eve,[579] in England
and Wales non-consensual sterilisation has been carried out on the basis of a
best interests test and there has not been a requirement of therapeutic
intent. Sterilisation of an adult who is not competent to consent
requires the prior sanction of a High Court judge where there are disputes or
difficulties in relation to the person’s capacity or best interests[580] and the position in relation to sterilisation has been
clarified by a Practice Note summarising the effect of decisions in this area.[581]
If a sterilisation procedure is necessary for therapeutic purposes (as opposed
to contraceptive purposes) there is generally no need to bring an application
to court.[582] If
an application is brought, the court must be satisfied that the operation will
promote the best interests of the person without capacity rather than the
interests or convenience of parents or carers. Three particular factors
for consideration are:
(i)
Whether there is an
identifiable risk of pregnancy;[583]
(ii)
Evidence of likely
physical or psychological damage deriving from conception;[584]
(iii) The person’s likely ability to care
for and/or have a fulfilling relationship with a child.
6.57
In Pembrey v The General Medical Council[585] the Privy Council upheld the decision of the General
Medical Council to strike a medical practitioner off the medical register based
on a finding of professional misconduct in relation to cases where
non-therapeutic sterilisation procedures were carried out on a number of adult
women with a learning disability. The Privy Council affirmed the decision
of the General Medical Council based on a finding that there had not been
adequate (or, in some cases, any) consideration given to alternative options to
sterilisation nor had appropriate consideration being given, in consultation
with other professionals, to an assessment of the women’s capacity to consent
or to their best interests.
6.58
In Scotland, sterilisation in circumstances where there is no serious
malfunction or disease of the reproductive organs is subject to the approval of
the Court of Session under the Adults with Incapacity (Scotland) Act 2000.[586]
This is also the case in relation to the surgical implantation of hormones for
the purposes of reducing sex drive.[587]
These forms of medical treatment can only be carried out in relation to an
adult who is incapable in relation to a decision about that treatment if the
court is satisfied, on application to it by the medical practitioner primarily
responsible for the medical treatment, that the treatment will safeguard or
promote the physical or mental health of the adult and that the adult does not
oppose the treatment or resist it being carried out. The Court of Session
is obliged to afford an opportunity to any person having an interest in the
personal welfare of the adult to make representations to it.[588]
6.59
In the Commission’s 1990 Report on Sexual Offences against the
Mentally Handicapped[589] the Commission commented that it seems probable that if
the issue of non-consensual sterilisation came up for judicial consideration in
Ireland, the approach in Re Eve[590] would be preferred, namely, that non-consensual
sterilisation would only be sanctioned for therapeutic purposes.[591]
It has since been argued that a consideration of whether sterilisation is in
the best interests of an individual would not be sufficient given the existence
of the mentally disabled person’s underlying constitutional rights.[592]
In Ireland the right to have children has been recognised in a marital
context as one of the unenumerated rights guaranteed by Article 40 as being
essential to the human condition and personal dignity.[593]
A person who has the capacity to marry[594]
and retains that capacity may have the capacity to consent or refuse sterilisation.
A wider right to reproduce has not yet been judicially recognised in Irish
constitutional law. In any case, the constitutional right to bodily
integrity[595] and
Article 8 of the ECHR are relevant in this context.[596]
Furthermore, in certain circumstances non-consensual sterilisation may
constitute a trespass against the person in civil law and a criminal assault
offence under the Non-Fatal Offences Against the Persons Act 1997.[597]
6.60
In 1996, the Commission on the Status of People with Disabilities
recommended that there should be a legal prohibition on sterilisation on the
basis of disability alone i.e. non-therapeutic sterilisation.[598]
Furthermore, in any case where sterilisation was being considered, it was
recommended that every effort should be made to ensure that informed and free
consent exists. Where informed consent is not possible, it recommended
that a court should determine that there is just and necessary cause, that
other methods of contraception are unworkable, that fair procedures are
observed including medical and psychological assessment of the person’s welfare
and rights, full consultation with parents and carers and that independent
advocacy should be available to the person.[599]
6.61
The Commission notes that the Department of Justice, Equality and Law
Reform acknowledged in its progress report on the implementation of the
recommendations of the Commission in the Status of People with Disabilities[600] that this
is a profoundly complex area and stated that it would examine the implications
of the recommendations in consultation with other relevant Departments and
interested parties.[601]
Although such a consultation would be desirable, it has not occurred to
date. Given that non-consensual sterilisation raises important
constitutional and human rights issues for persons with limited decision-making
ability, and may amount to a criminal offence, the Commission believes that it
is appropriate to affirm the recommendation of the Commission on the Status of
People with Disabilities that any proposed non-consensual sterilisation on
grounds of disability alone should be referred to the courts.[602]
6.62
The Commission recommends that the proposed capacity legislation
should provide that any proposed non-consensual sterilisation of a person with
limited decision-making ability where there is no serious malfunction or
disease of the reproductive organs would require an application to court.
7.
Chapter 7
capacity to make healthcare decisions
A
Introduction
7.01
From time to time most adults will visit the doctor or the
dentist. A visit to a general practitioner may result in medication being
prescribed. Further referral to a consultant may result in a
recommendation that a surgical procedure be carried out. A visit to the
dentist may result in an assessment that orthodontic work is required. In
each case there may be several options for treatment, each with its own
benefits and risks. As a general principle, the patient must agree or
consent to any treatment being proposed by a medical practitioner[603]
before it is carried out.
7.02
This chapter discusses issues relating to the capacity of adults to make
healthcare decisions.[604]
While a requirement of “informed consent” to medical treatment is enshrined in
law and ethics, there is an absence of corresponding clear and comprehensive
guidance for medical practitioners in relation to issues surrounding capacity
to make healthcare decisions.[605]
Part B of this Chapter sets out applicable legal principles in relation to
consent to treatment. Part C considers issues relating to the assessment
of capacity to make a healthcare decision. Part D examines the law
relating to making a healthcare decision where an adult lacks the required
capacity. Part E contains an overview of recent reforms in the United
Kingdom. Part F contains the Commission’s conclusions in this area.
B
Legal Principles concerning Consent to Medical
Treatment
(1)
The Requirement of Informed Consent
7.03
It is well-established in law that, as a general principle, in order to
carry out medical treatment, whether of a routine or extraordinary nature, the
consent of the patient is required.[606]
It is immaterial whether the medical treatment is of an ordinary or an
extraordinary nature. This can be written, oral or non-verbal (implied).[607]
In the past ‘simple consent’ was sufficient – this was satisfied by assent
manifested by a verbal indication of consent or the signature of a patient on a
consent form supplied by a hospital. Simple consent accepts a
verbal affirmation or signature agreeing to treatment at face value as evidence
of consent without the need for further inquiry. However, medical
ethics and law have moved on from a requirement of ‘simple consent’ to one of
‘informed consent’ to medical treatment.[608]
The requirement of informed consent means that a signature on a consent form
does not in itself prove the consent is valid. Thus it is often said that
consent is a process not a form.[609]
Patients need sufficient information about the reason they need treatment, the
benefits and risks of the treatment proposed, and alternative treatments.
If the patient is not offered as much information as they reasonably need to
make their decision in a form they can understand, their consent may not be
valid.[610]
7.04
There is no general statutory embodiment of the common law requirement
of informed consent to medical treatment.[611]
However, section 56 of the Mental Health Act 2001 sets out a statutory
definition of what constitutes consent to treatment for a ‘mental disorder’:
“… ‘consent’, in relation to a
patient, means consent obtained freely without threats or inducement, where –
(a) the consultant psychiatrist
responsible for the care and treatment of the patient is satisfied that the
patient is capable of understanding the nature, purpose and likely effects of
the proposed treatment; and
(b) the consultant psychiatrist
has given the patient adequate information, in a form and language that the
patient can understand, on the nature, purpose and likely effects of the
proposed treatment.”
7.05
In general terms, we can conclude that informed consent essentially
requires that the following elements be satisfied:[612]
(i) prior
disclosure of sufficient relevant information by the medical practitioner to
the patient to enable an informed decision to be made about the treatment
proposed;
(ii) the
patient has the necessary capacity at the time to decide whether or not to
consent to the proposed treatment;
(iii) the context
allows the patient to voluntarily make a decision as to whether to consent to
or to decline the proposed treatment.[613]
7.06
It is the responsibility of the medical practitioner to ensure that a
person has the capacity to make the healthcare decision. Indeed the
doctrine of informed consent is part of a medical practitioner’s duty of care
under the tort of negligence and has been judicially recognised as an aspect of
the constitutional right of privacy which ensures the dignity and freedom of
the individual.[614]
7.07
The Medical Council was established by the Medical Practitioners Act
1978. One of its functions is to provide guidance to the medical
profession on professional standards and ethical conduct.[615]
The Medical Council publishes ethical guidelines for the profession and these
are periodically revised.[616] On
the issue of informed consent, the Medical Council’s ethical guidelines state:
“ …
Informed consent can only be obtained by a doctor who has sufficient training
and experience to be able to explain the intervention, the risks and benefits
and the alternatives. In obtaining this consent the doctor must satisfy
himself/herself that the patient understands what is involved by explaining in
appropriate terminology….”[617]
(2)
Treatment without Consent
7.08
The right to determine what may be done with one’s own body is a
fundamental one. As Robins JA of the Court of Appeal of Ontario
stated in Malette v Shulman:[618]
“[t]he concepts inherent in this right are the bedrock upon which the
principles of self-determination and individual autonomy are based.” If medical
treatment or a medical examination is carried out without consent, this has
implications under the Constitution, human rights law, the law of torts and
criminal law.[619]
(a)
Constitutional Rights
7.09
The requirement of consent to medical treatment and medical examinations
is an aspect of the constitutional right to bodily integrity, an unenumerated
personal right under Article 40.3 of the Constitution.[620] The
right to bodily integrity as a personal right must be vindicated by the State
“as far as practicable”.[621] If
medical treatment is given without consent this may constitute a breach of the
individual’s right to bodily integrity.[622]
In Re A Ward of Court (No.2)[623] Denham J viewed the requirements of consent to medical
treatment and to be treated with dignity as aspects of the unenumerated right
to privacy under Article 40.3.[624]
(b)
Human Rights Law
7.10
The guarantee of protection for private life in Article 8(1)[625] of the European Convention on Human Rights (“ECHR”)[626]
has been interpreted by the European Court of Human Rights to include
protection for the physical integrity of the person.[627]
ECHR jurisprudence suggests that a compulsory medical intervention or
psychological examination may interfere with Article 8 rights[628]
and that medical treatment of an adult without their consent would interfere
with a person’s physical integrity in a manner capable of infringing Article
8(1).[629]
7.11
The Council of Europe in Convention on Human Rights and Biomedicine[630] (the
‘Biomedicine Convention’) has at its core the protection of the dignity and
integrity of human beings in the area of biology and medicine. In the
present context there are four important principles set out in the Biomedicine
Convention. First, an intervention should only be carried out on a person
who does not have the capacity to consent for his or her direct benefit.[631]
Second, the intervention must be authorised by the person’s “representative or
an authority or a person or body provided for by law”.[632]
Thirdly, the previously expressed wishes by a patient who is not in a position
at the time of the intervention to express them are required to be taken into
account.[633]
Fourthly, a necessity principle[634]
is broadly recognised in Article 8 which states:
“When
because of an emergency situation the appropriate consent cannot be obtained,
any medically necessary intervention may be carried out immediately for the
benefit of the individual involved.”
7.12
Parties to the Biomedicine Convention are required to provide for
appropriate sanctions to be applied in the event of infringement of these
provisions.
(c)
The Law of Torts
7.13
Treatment without consent may give rise to a claim for trespass to the
person and/or professional negligence in civil law.[635] In Appleton
v Garrett[636] aggravated damages for trespass to the person were
awarded against a dentist who carried out unnecessary dental work on patients
without their informed consent.
(d)
Criminal Law
7.14
Treatment without informed consent may constitute an assault offence
under sections 2 to 4 of the Non-Fatal Offences Against the Person Act 1997.[637]
(3)
Age and Capacity Thresholds
7.15
If a person is under the age of 16, a parent or guardian may consent to
or refuse treatment on their behalf. Generally speaking, by virtue of
section 23 of the Non-Fatal Offences against the Person Act 1997 a
person aged 16 or above may consent to surgical, medical or dental treatment. The general position is that a person
aged 18 or above, having reached the age of majority,[638]
may consent or refuse all forms of healthcare. However, where an adult
lacks the requisite capacity to make a decision on healthcare, as a general
rule no-one else has the legal right to make a decision on their behalf since
the guardianship of their parents or guardians ceases at 18 irrespective of the
adult’s decision-making capacity.
7.16
The law on capacity generally favours a functional approach to capacity [639] and a presumption of capacity
operates in law.[640] In
the medical context, an adult is presumed to have the capacity to make a
healthcare decision unless the contrary is established.[641] A person may temporarily lack capacity through unconsciousness,[642]
the effect of hallucinations, shock, severe fatigue, phobia[643]
or some impairment or disturbance of mental functioning.[644]
These circumstances may result in the person being unable to comprehend and
retain material information as to the likely consequences of having or not
having the treatment, or being unable to use the information and weigh it in
the balance in order to arrive at a decision.[645]
(4)
Right of Adult with Capacity to Refuse Treatment
7.17
Allied with the requirement of informed consent is the concomitant right
of a person with capacity to make a decision on their medical treatment to
decline recommended treatment.[646]
This affords autonomous decision-making to persons judged to have the capacity
to make the relevant decision on their healthcare. Denham J summarised
the autonomy of a person with capacity in relation to healthcare decisions in Re
a Ward of Court (No.2) as follows:
“The
consent which is given by an adult of full capacity is a matter of
choice. It is not necessarily a decision based on medical
considerations. Thus medical treatment may be refused for other than
medical reasons, or reasons most citizens would regard as rational, but
the person of full age and capacity may make the decision for their own
reasons.”[647]
C
Assessment of Capacity to Make Healthcare
Decisions
7.18
Two important principles can be derived from the case law in relation to
the assessment of capacity to make healthcare decisions. The first serves
to give weight to the gravity of the circumstances in assessing the level of
capacity required. The second principle exerts a counterbalance by
directing that an assessor should not be unduly swayed by the consequences of
the healthcare decision, including the refusal to follow the advice of the
medical practitioner, as opposed to focusing on the underlying functional
capacity of the adult.
(1)
Capacity is commensurate with the gravity of the decision
7.19
The courts have viewed the level of capacity required as being related
to the gravity of the consequences of the healthcare decision. In Re T
(Adult: Refusal of Treatment), Butler-Sloss LJ stated:
“Doctors
faced with a refusal of consent have to give very careful and detailed
consideration to the patient’s capacity to decide at the time when the decision
was made. It may be the more difficult case of a temporarily reduced
capacity at the time when his decision was made. What matters is that the
doctors should consider whether at that time he had a capacity which was
commensurate with the gravity of the decision which he purported to make.
The more serious the decision, the greater the capacity required. If the
patient had the requisite capacity, they are bound by his decision.” [648]
(2)
Consequences of choice not determinative of capacity
7.20
The rise in importance of autonomy and self-determination is difficult
to reconcile with the paternalism which has traditionally guided medical
practitioners. In certain circumstances the ethical principles of
autonomy and beneficence may conflict. While medical practitioners will
have a natural interest in ensuring a person’s wellbeing from the point of view
of best medical practice, case law in this area emphasises that a person should
not be found to lack competence simply because they do not want to take their
doctor’s advice or because their choice appears objectively irrational.
7.21
In Re C (Adult: Refusal of Medical Treatment)[649] a person suffering from paranoid schizophrenia was found
to have the capacity to refuse to consent to the amputation of his leg in
circumstances where he might die if the gangrene were to spread. Although
C’s general capacity to make a decision had been impaired by schizophrenia, the
English High Court held that the evidence failed to establish that he lacked
sufficient understanding of the nature, purpose and effects of the proposed treatment,
but instead showed that he had understood and retained the relevant treatment
information, believed it and had arrived at a clear choice. It followed
that the presumption of capacity had not been displaced and Thorpe J held that
he was entitled to refuse to consent to the amputation.
7.22
A difference in values should not in itself lead to a finding of lack of
capacity. In Re B[650] a tetraplegic patient was being kept alive by a
ventilator and wished to have the ventilator turned off.[651]
The court held that the woman had mental competence commensurate with the
gravity of the decision she wished to make. Butler-Sloss P stated:
“If
there are difficulties in deciding whether the patient has sufficient mental
capacity, particularly if the refusal may have grave consequences for the
patient, it is most important that those considering the issue should not
confuse the question of mental capacity with the nature of the decision made by
the patient, however grave the consequences. The view of the patient may
reflect a difference in values rather than an absence of competence and the
assessment of capacity should be approached firmly with this in mind. The
doctors must not allow their emotional reaction to or strong disagreement with
the decision of the patient to cloud their judgment in answering the primary
question whether the patient has the mental capacity to make the decision.” [652]
7.23
However, in some situations, the reasoning behind a decision may be
inherently flawed by irrationality so as to lead to the conclusion that the
individual lacks the required capacity to make the decision. NHS Trust
v T[653] concerned a woman diagnosed with a borderline
personality disorder who had completed an advance care directive refusing blood
transfusions on the basis that her blood was “carrying evil”. It was held
by the English High Court that, having regard to this irrational reason, she
lacked the capacity to refuse a blood transfusion.
(3)
Guidelines on the Assessment of Capacity
7.24
The area of assessment of capacity to make a healthcare decision is
fraught with uncertainty. While medical practitioners have to make such
assessments on a daily basis, there is little guidance or common understanding
among medical practitioners concerning how capacity assessments should be
approached.[654]
This reflects a lack of consensus in the medical profession globally on how
capacity should be assessed.[655]
There is no universally accepted methodology for assessing capacity to consent
to medical treatment.[656]
Tests such as the Mini-Mental State Examination (MMSE)[657]
and the Wechsler Adult Intelligence Scale[658]
are useful indicators or diagnostic tools but should not be regarded as
determinative of capacity to make healthcare decisions.[659]
Ideally an assessment of capacity requires an exercise of clinical judgement
guided by professional guidelines and legal requirements. [660]
7.25
The Medical Council’s ethical guidelines for the medical profession[661]
contain some guidance (albeit of a very general nature) on capacity issues.[662]
The guidelines require an assessment of competence to be carried out by a
medical practitioner “in conjunction with a senior colleague”.[663]
The ethical guidelines do not, however, give guidance on the appropriate
methodology for assessing competence.
7.26
In some jurisdictions detailed guidelines of a general nature assist
healthcare professionals assessing capacity to make healthcare decisions.
The British Medical Association has published a “Consent Tool Kit” to assist
healthcare professionals in dealing with consent issues.[664] The
Tool Kit lists factors to be taken into account in assessing competence to
consent to treatment:
“To
demonstrate capacity individuals should be able to:
· Understand
in simple language what the medical treatment is, its purpose and nature and
why it is being proposed;
· Understand
its principal benefits, risks and alternatives;
· Understand
in broad terms what will be the consequences of not receiving the proposed
treatment;
· Retain
the information for long enough to use it and weigh it in the balance in order
to arrive at a decision.”
Furthermore, the Tool Kit
states that the patient should be able to make a choice which is freely made.
7.27
Section 13 of Scotland’s Adults with Incapacity (Scotland) Act
2000 requires the Scottish Executive to have a code of practice on medical
treatment approved and provides for its review from time to time. The resulting
Code of Practice is of assistance to medical practitioners seeking to assess
capacity.[665]
Although compliance with the Code of Practice is not legally binding, it would
constitute evidence of best practice and can be referred to in evidence in an
action for negligence.[666] Under
the Code of Practice, medical practitioners assess an adult’s capacity to make
a healthcare decision on the basis of consideration of a range of factors
including whether the person:
· Is
capable of making and communicating their choice;
· Understands
the nature of what is being asked and why;
· Has
memory abilities that allow the retention of information;
· Is
aware of alternatives;
· Has
knowledge of the risks and benefits involved;
· Is
aware that such information is of personal relevance to them;
· Is
aware of the right to, and how to, refuse, as well as the consequences of
refusal;
· Has
ever expressed their wishes relevant to the issue where greater capacity
existed;
· Is
expressing views consistent with their previously preferred moral, cultural,
family and experiential background.[667]
The Code also emphasises the
importance of ensuring that there are no barriers to consent such as undue
suggestibility and sensory difficulties.[668]
7.28
The Commission notes the practical utility of such guidelines on
assessing capacity. The formulation of similar guidelines in this
jurisdiction in the form of a statutorily backed code of practice is considered
later in this chapter.[669]
D
Making Healthcare Decisions where an Adult
Lacks Capacity
7.29
When an assessment is made that an adult
lacks capacity to make a healthcare decision, this does not have the effect of
removing a requirement for a legally effective consent. Non-emergency
medical treatment given without consent gives rise to potential civil and
criminal liability as well as potentially breaching constitutional and human
rights.[670]
Therefore where there is a suggestion that an adult may not have the capacity
to make a healthcare decision, difficulties arise for medical professionals
from a risk-management perspective. McMahon and Binchy aptly comment
that:
“[p]rinciples
of bodily integrity and autonomy should be given due weight; paternalism,
outside the context of judicial exercise of its parens patriae jurisdiction,
should not be let to run rampant, merely because the object of the benevolent
intervention lacks the capacity to refuse it.”[671]
7.30
This Consultation Paper
focuses on issues concerning the legal definition of capacity.
Nevertheless in the context of medical treatment it is appropriate to give some
consideration to what will occur if an adult is considered not to have the
capacity to consent to medical treatment as this will inform any understanding
of capacity to make healthcare decisions. As outlined in Chapter 3,[672]
it is the Commission’s intention that the formulation of an appropriate
assisted and substitute decision-making regime for adults who lack capacity
will be revisited in the final report in this area.
7.31
This Part focuses on the widespread practice of next of kin signing
consent forms on behalf of adults who may lack capacity and considers the
application of the common law doctrine of necessity in the sphere of
healthcare. The Commission also examines the current role of the wardship
and enduring powers of attorney regimes in the context of healthcare. The
law governing clinical trials and research on adults who lack capacity and the
subject of advance care decisions are considered in brief. It is against
this backdrop that the capacity of adults to make healthcare decisions is
assessed in practice.
(1)
Next of Kin and Consent Forms
7.32
In law once a person has reached the age of majority their parents or
guardians cannot legally consent to or refuse medical treatment on their
behalf.[673]
Nevertheless where an adult does not have the capacity to make a decision to
consent to or refuse treatment, it is common medical practice in Ireland to
require their next of kin to sign a consent form in relation to the treatment.[674]
This practice gives rise to difficulties of both a practical and a legal
nature.
7.33
Relying on a signature from a next of kin can give rise to issues
on which there is no clear guidance:
· there
may be no traceable near relative;[675]
· there
may be other persons with an interest in the person’s welfare who do not come
within the definition of next of kin;[676]
· Medical
practitioners may be unsure how to proceed where there is a disagreement
between close relatives as to whether to consent to the proposed medical
treatment.
7.34
Aside from these practical limitations, the practice of relying on a
signature on a consent form from a next of kin involves a considerable but
entrenched divergence between the letter of the law
and healthcare practice.
Skeggs has commented that:
“The
better view is that there is no general doctrine whereby a spouse or near
relative is empowered to give a legally effective consent to medical procedures
to be carried out on an adult.”[677]
7.35
In Re A Ward of Court (No.2)[678] the Supreme Court held that in the case of a Ward of
Court it is for the court to make decisions on their medical treatment.
However, the Court did not make any pronouncement in relation to the position
of other adults who lack capacity but have not been made a Ward of Court.
In the Consultation Paper on Law and the Elderly[679]
the Commission stated that:
“the law on consent to medical
treatment may need to be addressed because of the widespread false belief that
family members and carers may make valid decisions on behalf of people who do
not have legal capacity.”[680]
7.36
The Medical Council’s Ethical Guidelines state that if a person with a
disability lacks the capacity to give consent:
“a
wide-ranging consultation involving parents/guardians and appropriate carers
should occur. Where necessary, a second opinion should be considered
before decisions on complex issues are made.”[681]
The President of the
Medical Council has acknowledged that problems exist for doctors and patients
arising out of the lack of proper legal structures supporting the care of
vulnerable patients such as people with disabilities and the elderly:
“No adult can give consent for
another adult unless the person is made a ward of court. Most of the
people in the country who are vulnerable are not wards of court, and so are
treated by doctors on an understanding that they consult widely, as in our
ethical guidelines, but that does not give legal backing.”[682]
7.37
Daniels v Heskin[683] is authority for the proposition that a medical
practitioner cannot be held to be negligent if he follows general and approved
practice in the situation with which he is faced. However, in O’Donovan
v Cork County Council[684] Walsh J
stated that this is subject to the qualification that while conforming with a
widely accepted professional practice will normally rebut an allegation of
negligence, this will not be the case where the common practice has inherent
defects which should be obvious to any person giving the matter due
consideration.[685]
Therefore if the matter of whether the consent of next of kin was legally
effective arose for consideration in the courts in a professional negligence
case, it would not be a complete answer for a medical practitioner to give
evidence of the widely established nature of the practice of next of kin
signing consent forms in these circumstances.
(2)
The Doctrine of Necessity
7.38
In some instances medical practitioners rely on what is known as ‘the
doctrine of necessity’ in order to justify treatment of a person who
lacks the required decision-making capacity to give informed consent. The
common law doctrine of necessity which has been applied in relation to medical
treatment has its origins in the law of agency’s recognition of an agent of
necessity.[686]
Essentially this doctrine provides a legal justification for treating a
person who does not have the capacity to consent where there is what is termed
a ‘necessity to act’.[687]
Legally, the principle of necessity does not operate to provide an equivalent
to having consent. Rather it would appear to operate as a defence if an
action is subsequently challenged.[688]
The law is not settled in Ireland in relation to the ambit of the doctrine of
necessity, in particular the circumstances which will create the requisite
‘necessity to act’, and what such necessity to act entails.
7.39
The doctrine was recognised in Ireland in a medical context in the High
Court decision of Holmes v Heatley.[689]
In this case the parents of a minor had consented to an operation with a
local anaesthetic. During the operation, the boy, who was of a nervous
disposition, became restless and hysterical and had to be held down. In
order to be able to stitch up the wound a general anaesthetic was administered.
The patient died on the operating table. A claim for damages was brought
by the parents on the basis that the administration of the general anaesthetic
without consent constituted assault and battery. The High Court held that
treatment which is necessary in an emergency situation is lawful and the doctor
has a defence to a charge of battery.[690]
Maguire J. stated that the surgeon was “bound to act as he did in the
emergency with which he was faced.”[691]
7.40
The leading English case on the doctrine of necessity is the decision of
the House of Lords in Re F (Mental Patient: Sterilisation).[692]
This case concerning the proposed sterilisation of a young woman[693]
was the first authoritative statement by the English courts or legislature
(other than in the area of mental disorder) recognising the legality of
treatment of an adult who is unconscious or otherwise incompetent to consent to
medical treatment. Lord Goff explored the common law principle of
necessity and found that it contained two limbs:
(i) there
must be a necessity to act when it is not practicable to communicate with the
assisted person; and
(ii) the
action must be what a reasonable person would do in the circumstances acting in
the best interests of the assisted person.
(a)
Necessity to Act
7.41
Although it is often assumed that the doctrine only applies to emergency
situations, it was expressed in broader terms in Re F where Lord Goff
stated that “[t]he principle is one of necessity, not of emergency.”[694]
Therefore it was clearly contemplated that the activating principle is
necessity in the broad sense rather than medical emergency.[695]
Lord Goff in Re F suggested that the doctrine of necessity extends to
routine treatment of persons lacking capacity and that in such cases doctors
should:
· act
on the basis of good professional practice;[696]
· consult
with relatives and others interested in the care of the individual; and
· act
subject to the overriding requirement of acting in the person’s best interests.
On this view, the doctrine
may extend to elective surgery which is not strictly ‘necessary’.
7.42
The necessity principle is recognised in Article 8 of the Council of
Europe Convention on Human Rights and Biomedicine[697] which states:
“When
because of an emergency situation the appropriate consent cannot be obtained,
any medically necessary intervention may be carried out immediately for the
benefit of the individual involved.”
7.43
In Re a Ward
of Court (No.2),[698] a case
concerning medical treatment of a woman who had been made a Ward of Court,
Denham J stated obiter that the exceptions to the requirement of consent
to medical treatment by adults with capacity are rare e.g. the treatment of
contagious diseases and in a medical emergency where the patient is unable to
communicate.[699] In JM
v St Vincent’s Hospital[700] Finnegan P used the parens patriae prerogative to
admit an unconscious woman who temporarily lacked capacity to wardship before
making a decision on what medical treatment she should receive. However,
the Irish courts have not
had the opportunity to set clear boundaries to the scope of the doctrine of
necessity and its application to medical treatment of adults who lack capacity
to consent but have not been made a Ward of Court.
7.44
The Medical Council’s ethical guidelines provide that:
“in
an emergency where consent cannot be obtained e.g. an unconscious patient or a
child not accompanied by a parent or guardian, a doctor may provide treatment
that is necessary to safeguard the patient’s life or health.” [701]
This does not provide
guidance on the provision of routine medical treatment to adults who lack the
capacity to consent.
The Charter of Rights for Hospital
Patients (1992) applies in all publicly funded hospitals. Its
provisions state:
“Only
in cases where a patient lacks the capacity to give or withhold consent, and
where a qualified medical doctor determines that treatment is urgently
necessary to prevent immediate or imminent harm, may treatment be given without
informed consent.”
7.45
The Commission understands that the practical result of the lack of
clarity as to the ambit of the doctrine of necessity in Ireland is
twofold. Some medical professionals may err on the side of caution by
carrying out medical treatment on a person who lacks capacity to consent only
in situations where the necessity is of the highest order - in a life and death
situation. Other practitioners may rely on the doctrine of necessity for
all medical treatment of an adult who lacks the capacity to consent.
(b)
Best Interests
7.46
Once a necessity to act has been determined, the doctrine of necessity
requires that any action taken must be in the person’s best interests. It
is the best interests of the adult who lacks capacity which are relevant not
the interests of other parties.[702]
In relation to the requirement to consult relatives, convenience to carers
should not form the justification for a decision to treat.[703]
In Re Y (Mental Capacity: Bone Marrow Transplant)[704] it was held that the fact that the donation of bone
marrow by a woman who lacked capacity to consent to her sister would save her
sister’s life was not relevant if the donation would not serve the best
interests of the donor. In Re A (Male Sterilisation) Butler-Sloss
P stated that best interests encompasses “medical, emotional and all other
welfare issues.”
[705] Thorpe LJ suggested a balance
sheet approach to carrying out an evaluation of best interests whereby likely
benefits would be listed on one side and counterbalancing disbenefits on the
other along with an estimation of the possibility of that gain or loss
accruing.[706]
7.47
Lord Goff in Re F (Mental Patient: Sterilisation)[707] ruled out “officious intervention” as coming within the
scope of the principle of necessity. Therefore intervention would not be
justified when it is “contrary to the known wishes of the assisted person, to
the extent that he is capable of forming such wish.[708]
7.48
In Re F (Mental Patient: Sterilisation)[709] Lord Goff drew a distinction between a situation where a
person is temporarily unable to consent, such as where the person has been
temporarily rendered unconscious in an accident, and a situation where the lack
of capacity is permanent or semi-permanent. In the first situation where
the loss of capacity is likely to be temporary, Lord Goff stated that medical
practitioners should do no more than is required in the best interests of the
patient before they recover consciousness and can then be consulted. The
British Medical Association and Law Society state:
“Not
only is a doctor able to give treatment to an incapacitated patient when it is
clearly in that person’s best interests, it is a common law duty to do
so. Nevertheless, this still only applies to treatment carried out to
ensure improvement or prevent deterioration in health or the steps required to
prepare for recovery to become an option.”[710]
In Re a Ward of Court (No.2) Denham J
stated:
“Whilst an unconscious patient in an emergency
should receive all reasonable treatment pending a determination of their best
interests, invasive therapy should not be continued in a casual or
ill-considered way.” [711]
7.49
The requirement that action taken be in the person’s best interests was
endorsed by the Supreme Court in the context of a Ward of Court in Re a Ward
of Court (No.2).[712] In the High Court, Lynch J referred to “deciding
what is the balance or proportionality of the benefits to the burdens” having
regard to all the circumstances. The standpoint of the Court in deciding
on best interests would be that of “a prudent, good and loving parent.”[713]
He also referred to taking into account what would be likely to be the
individual’s wishes. This approach was upheld by the Supreme Court on
appeal. The constitutional rights of the individual would also need to be
taken into consideration. Relevant constitutional rights include the right
to life, the right to bodily integrity and the right to privacy including the
right to self-determination.[714]
(c)
Consultation Paper on Law and the Elderly
7.50
In the Consultation Paper on Law and the Elderly,[715]
the Commission recommended that “the proposed new legislation should state, for
the avoidance of doubt, that medical professionals are entitled to perform
emergency medical procedures in the case of any adult without capacity to
consent if [the proposed personal guardian] is not available to give consent
where it is medically necessary and in the best interests of the person.[716]
The Commission suggested that the concept of emergency healthcare decisions
could be the subject of an agreement between the Medical Council and the
proposed Office of the Public Guardian.[717]
7.51
The Commission has given further consideration to this issue since the
publication of the Consultation Paper on Law and the Elderly and its
recommendations in this area are set out below.[718]
7.52
Where an adult has been made a Ward of Court,[719] the
President of the High Court has authority to make decisions on consent to
medical treatment for that person. After obtaining medical advice,
medical treatment matters should be referred by the Committee of the Person or
by the clinical director of the relevant hospital to the Registrar of Wards of
Court.[720] In
practice, the Registrar has delegated authority from the President of the High
Court to consent to the carrying out of routine and non-controversial
procedures in consultation with the person’s next of kin.[721]
7.53
Where procedures are considered to be non-routine or there is a higher
element of risk involved the consent of the President of the High Court must be
obtained in relation the carrying out of a medical procedure including the
administration of a general anaesthetic. The consent of the President of
the High Court must also be obtained in respect of procedures “to which the
ward, if capable of indicating consent, did not consent, or where the ward was
incapable of consent, to which the ward’s next of kin consent.”[722]
7.54
When a court makes a healthcare decision in respect of a person who has
been made a Ward of Court, they will do so in the best interest of the
Ward. This is clear from the leading case in this area, Re a Ward of
Court (No.2) [723] In this case a woman was in a
near persistent vegetative state (PVS) since a minor gynaecological operation
in 1972 under general anaesthetic. In 1974 she was made a Ward of Court.
She was being fed by a gastronomy tube. The mother who was the Committee
of the Ward sought directions from the High Court as to the proper care and
treatment of the Ward, in particular as to the lawfulness of the withdrawal of
artificial nutrition and hydration. It was argued that by virtue of
Article 41.1 of the Constitution, the family had the right to make the decision
to withdraw treatment.
7.55
Lynch J held that where there is a dispute between medical staff and
family as to the withdrawal of life support, the dispute should be referred to
the Court which would decide the matter on a best interests test “from the
standpoint of a prudent, good and loving parent”[724]
having regard to the view of the family. He went on to hold that it was
in the best interests of the woman that artificial nourishment should be
terminated, allowing her to die a natural death. The Attorney General,
the institution in which the woman resided and her guardian ad litem appealed
the decision to the Supreme Court.
7.56
The Supreme Court held that it is for the court to make a decision on
behalf of the Ward, with the prime and paramount consideration being the best
interests of the Ward, taking into account the view of the Committee and
family.[725] The
decision to withdraw artificial nourishment was upheld by the majority of the
Supreme Court as in the best interests of the woman.
7.57
In some cases a person who lacks capacity in relation to a medical
decision will be admitted to wardship so that a legal consent may be obtained
in respect of treatment. JM
v St Vincent’s Hospital[726] is such a case. The case concerned a woman who had
converted to her husband’s religion as a Jehovah’s Witness on marriage.
She initially refused to take blood, then vacillated between consenting and
refusing before going into a coma. She had a 60% chance of survival with
medical treatment including a liver transplant and blood transfusion.
Finnegan P used his parens patriae jurisdiction to admit the woman to
wardship. He then directed that the hospital provide the required medical
treatment. Finnegan P stated that “because of her cultural background and
her desire to please her husband and not offend his sensibilities [she] elected
to refuse treatment”. Finnegan P appeared to adopt a form of substituted
judgment test in stating that he did not regard her decision as having been
finally made and that:
“I
am strongly of the opinion that if [she] was now lucid and strong and aware of
her husband’s present decision, she would agree with a decision to have the
treatment as she would have a desire to live, as has been seen. She would
also be comforted by her husband’s attitude to the decision.”[727]
7.58
Wardship is a cumbersome, time-consuming and costly procedure which is
ill-suited to speedy decisions on medical treatment. The Commission
recommended in the Consultation Paper on Law and the Elderly the
establishment of an alternative substitute decision-making which would replace
wardship whereby a personal guardian could be appointed to make decisions on
behalf of an adult without capacity to make the relevant decisions.[728]
The Commission recommended that personal guardians would be entitled to take
minor or emergency healthcare decisions on behalf of a person without the
capacity to do so.[729]
(4)
Enduring Powers of Attorney
7.59
A person with the requisite capacity may execute an enduring power of
attorney (“EPA”) giving another person the power to act on their behalf in the
event that they lose mental capacity.[730]
The decisions which may be made may relate to the person’s property or affairs
and/or “personal care” decisions. However, personal care decisions do not
include decisions on medical treatment or surgery.[731]
In the Consultation Paper on Law and the Elderly,[732]
the Commission provisionally recommended that it should be permissible for
attorneys under EPAs to be given power to make healthcare decisions.[733]
Clearly, extending the remit of enduring powers of attorney to include
healthcare decisions would be desirable.[734]
This would allow a person with capacity to plan ahead to entrust another person
with decision-making powers in relation to healthcare matters should the donor
lose capacity in the future. This would have the advantage of allowing an
adult with capacity to choose the person who will make these decisions in the
event that they lose capacity at a later date.
7.60
Extending enduring powers of attorney to cover certain healthcare
decisions would not provide a solution for adults who have either (a) never
possessed the capacity to execute an enduring power of attorney, or (b) did not
execute an enduring power of attorney while they had the requisite capacity to
do so and no longer possess the capacity. These difficulties would be addressed
by the establishment of an assisted and substitute decision-making regime of
the type recommended by the Commission in the Consultation Paper on Law and
the Elderly.[735]
(5)
Clinical Trials and Research
7.61
Applications for authorisations of clinical trials in Ireland are
made to the Irish Medicines Board. The European Communities (Clinical
Trials on Medicinal Products for Human Use) Regulations 2004[736]
(“the Clinical Trials Regulations”) which implemented the Clinical Trials
Directive[737] govern
clinical trials of medicinal substances.[738]
Part 5 of Schedule 1 of the Clinical Trials Regulations lays down
particular requirements in relation to the participation in clinical trials of
persons over 16 who lack capacity to consent. Participation of a person
who lacks capacity to give informed consent is only permitted where the trial
cannot be conducted without the participation of persons who do not have the
capacity to give informed consent. Furthermore, these adults may only be
included in clinical trials where it is anticipated that the direct benefit to
them will outweigh the risks.
7.62
A “legal representative” (a suitable person with a family relationship
with the adult, or in default, a nominated solicitor) must give their informed
consent to the adult’s participation. The adult must be given information
regarding the trial according to their capacity of understanding. The
parties who are entitled to make a decision regarding the participation of an
adult who lacks capacity in a clinical trial may require to be amended in the
context of the enactment of legislation providing for the appointment of
personal guardians as recommended by the Consultation Paper on Law and the
Elderly.[739] Subject
to this comment, the Commission considers that the European Communities (Clinical
Trials on Medicinal Products for Human Use) Regulations 2004 implement best
practice in this area and contain adequate safeguards to protect the interests
of adults who lack capacity.
7.63
An advance care directive (or ‘living will’) involves advance
stipulation by an individual with capacity of the type of treatment they would
not wish to receive if they were to become incapable. The validity of
advance care directives has been recognised by the English courts so that where
a person had the capacity to make an advance care directive at the time it was
made, it remains binding and effective notwithstanding their subsequent
enduring loss of capacity.[740]
The English Mental Capacity Act 2005 gives statutory recognition in
England and Wales to advance decisions to refuse treatment.[741]
7.64
There has been no legislation or case law in Ireland specifically
addressing the efficacy of advance care directives.[742]
In the Consultation Paper on Law and the Elderly[743]
the Commission recognised that advance refusals of treatment raise important
and contentious moral, ethical and legal questions.[744]
Doctors may regard the effect of an advance directive as contrary to their
clinical judgment. Medical science may advance considerably in the period
between the making of the advance directive and the medical situation provided
for arising in practice. More fundamentally, advance care directives
throw up the difficult issue of whether treatment should be withheld which is
needed in order to prevent death. The complex moral, ethical and legal
aspects of advance care directives require detailed consideration which is
beyond the scope of this Consultation Paper. The Commission therefore
confines itself at this juncture to noting that the subject may merit further consideration
in the context of the establishment of a coherent legal framework for capacity
and substitute decision-making.
E
Reforms in the United Kingdom
(1)
Developments in England and Wales
(a)
Practice Note concerning Medical Decisions for Adults who Lack Capacity
7.65
In England and Wales, an Official Solicitor Practice Note was
published in 2001 which summarised the common law in relation to medical and
welfare decisions for adults lacking capacity.[745]
The Practice Note highlighted that the High Court has jurisdiction to
make declarations in relation to the best interests of an adult who lacks
decision-making capacity in relation to healthcare decisions where there is a
serious justiciable issue requiring a court decision.[746]
The court will make a decision on the proposed procedure based on the best
interests of the patient.[747] In
this regard the emotional, psychological and social benefit to the patient is
taken into account.[748]
Where an application is made to court for a declaration, the hospital must
present evidence[749] concerning
the adult’s capacity and best interests and evidence to the effect that
performing the particular procedure would not be negligent. Particular
guidance is given with respect to sterilisation cases[750]
and cases where a person is classed as being in a ‘permanent vegetative
state’.
(b)
The Mental Capacity Act 2005
7.66
The Mental Capacity Act 2005 sets out new statutory rules on capacity.[751]
It deals with substitute healthcare decision-making and advance decisions to
refuse treatment.
(I)
Delegating Healthcare
Decisions to Donee of Lasting Power of Attorney
7.67
Section 9 of the Mental Capacity Act 2005 makes provision for a
lasting power of attorney (“LPA”) which will be similar to the enduring
power of attorney (“EPA”) under Irish law.[752]
However, in contrast to EPAs, it is envisaged that LPAs may be used to give
the donee the right to make welfare decisions in relation to the donor’s
healthcare including medical, optical and dental treatment.[753]
An LPA which gives welfare powers to the attorney includes the power to
make decisions on the carrying out or continuation of treatment.[754]
However, if the attorney’s decision-making powers are to extend to decisions on
life-sustaining treatment, this must be expressly set out in the LPA.[755]
The attorney’s powers are subject to the 2005 Act’s provisions on advance
decisions to refuse treatment.[756]
7.68
An attorney with welfare powers relating to healthcare decisions must
act in accordance with the general principles of best interest set out in Part
1 of the Mental Capacity Act 2005 which include requirements to
recognise and maximise the person’s capacity and to allow their participation
in decisions.
(II)
Appointment of Deputies
7.69
The Mental Capacity Act 2005 permits the appointment of a deputy
to act on a person’s behalf in relation to personal welfare matters including
healthcare decisions where that person lacks capacity.[757]
This will be useful in cases where the person lacks the capacity to
execute an LPA.
(III)
General Authority to
Act
7.70
Section 5 of the Mental Capacity Act 2005 contains a general
authority allowing a person to act in connection with the care or treatment of
another person where the actor reasonably believes the other person lacks
capacity in relation to the matter in question and that he is acting in their
best interests. This will permit medical treatment to be
carried out without the issue of assault arising. However, it will not
prevent an action for professional negligence in respect of the treatment given.
In any case where there is a doubt in relation to the patient’s best interests,
an application can be made to the Court of Protection for a declaration.[758]
(IV)
Mental Capacity
Advocates
7.71
The Mental Capacity Act 2005 provides for local authorities to
appoint independent mental capacity advocates who can represent and support
persons in relation to decision-making in respect of the provision of serious
medical treatment by the NHS.[759]
(a)
Certificate of Incapacity System
7.72
In Scotland there is a legal presumption that persons aged 16 or
over can make decisions including healthcare decisions. That presumption
can be overturned on evidence of lack of the requisite capacity. Before
an adult who lacks the capacity to make healthcare decisions can be treated,
Part 5 of the Adults with Incapacity (Scotland) Act 2000 (“the Act”)
requires a Certificate of Incapacity to be produced for all medical treatment
except in emergencies where the common law doctrine of necessity continues to
apply.[760]
7.73
The medical practitioner primarily responsible for the medical treatment
of an adult[761] must
certify in a prescribed form that they are of the opinion that the adult is
incapable in relation to the making of a decision regarding the medical
treatment in question. For the duration of the certificate that
medical practitioner, or any other person authorised by him or her, has
authority “to do what is reasonable in the circumstances, in relation to the
medical treatment, to safeguard or promote the physical or mental health of the
adult.”[762] The
specified wording of the Certificate of Incapacity requires the medical
practitioner to have “today examined” the adult. Some believe this adds
unduly to the workload of medical practitioners. Others are of the view
that such a requirement is central to the functional nature of capacity under
the Act.
7.74
The certificate of incapacity has a maximum duration of one year.[763]
It may be revoked if circumstances change or a new certificate may be
issued. Decisions as to medical treatment can be appealed by an
interested party in some instances to the Court of Session.[764] Some healthcare practitioners in Scotland have
expressed the view that having to obtain certificates for minor or routine
interventions is time-consuming and that some treatments could be excluded from
the requirement for a certificate.[765]
The argument has been made that other healthcare professionals, in particular,
dentists should be empowered to sign a certificate of incapacity because they,
rather than a medical practitioner, understand the nature of the treatment
proposed[766] and it is
planned to introduce amending legislation to facilitate this.[767]
(b)
Appeal from decision of Medical Practitioner
7.75
Where an appointed substitute decision–maker (a guardian or welfare
attorney, or a person who has been authorised to make a decision on medical
treatment pursuant to an intervention order), agrees with the medical
practitioner’s view as to the course of action to take, it is nevertheless open
to any other person having an interest in the adult’s personal welfare to
appeal the decision of the medical practitioner to the Court of Session.[768]
7.76
Where the substitute decision-maker and the medical practitioner are not
in agreement, the medical practitioner will request the Mental Welfare
Commission to nominate a medical practitioner to give a second opinion.[769]
If, having consulted with interested parties (a guardian, welfare attorney or
person authorised under an intervention order, and if reasonable and
practicable, a person nominated by them), the second medical practitioner is of
the opinion that the medical treatment should be given, it can go ahead.[770]
Following the determination of the nominated medical practitioner, an
application may be made to the court by the primary medical practitioner or any
person with an interest in the welfare of the adult to determine whether the
proposed treatment should be given or not.[771]
(c)
Treatments requiring application to the court
7.77
Sterilisation where there is no serious malfunction or disease of the
reproductive organs and surgical implantation of hormones for the purpose of
reducing sex drive require court approval.[772]
These forms of medical treatment can only be carried out in relation to
an adult who lacks capacity to make a decision about that treatment if the
court is satisfied, on application to it by the medical practitioner primarily
responsible for the medical treatment, that the treatment will safeguard or
promote the physical or mental health of the adult and that the adult does not
oppose the treatment or resist it being carried out. The Court of Session
is obliged to afford an opportunity to any person having an interest in the
personal welfare of the adult to make representations to it.
(d)
Treatments requiring a certificate from a practitioner appointed by the
Mental Welfare Commission
7.78
Certain treatments[773] require a certificate (valid for not more than one year)
from a practitioner appointed by the Mental Welfare Commission.[774]
They include drug treatment for the purpose of reducing sex drive (other than
surgical implantation of hormones) and any medical treatment which is likely to
lead to sterilisation as an unavoidable result. The practitioner
appointed by the Mental Welfare Commission (who cannot be the adult’s primary
medical practitioner) must certify that the adult is incapable in relation to
the decision and that, having regard to the likelihood of its safeguarding or
promoting the adult’s physical or mental health, the treatment should be
carried out.
F
Conclusions
(1)
Issues for Resolution
7.79
The Commission’s primary conclusion in relation to the law and practice
relating to capacity to make healthcare decisions is that there is a need for
guidance for medical practitioners in relation to:
· how
capacity to make healthcare decisions should be assessed; and
· what
action the law requires if a person is judged not to have the capacity to make
a healthcare decision.
7.80
The current lack of certainty in relation to treating adults who may
lack capacity has profound practical consequences for the health of the adults
in question, their families and carers who look after their welfare.
Health professionals have to exercise personal judgment in assessing capacity
and how to proceed if an adult is assessed as lacking capacity to make a
healthcare decision rather than acting on the basis of a coherent legal and
ethical framework in this area. In a non-emergency situation healthcare
professionals find themselves in an invidious position. They may seek a
signature on a consent form from a next of kin (a practice which, though
well-established, is not based in law). They may decline to act on the
basis that the procedure is not ‘necessary’ and as a matter of law nobody else can
consent to medical treatment on the adult’s behalf. Alternatively they
may rely on the doctrine of necessity to act because there is no other route
available other than making an application to the courts unless the patient has
been made a Ward of Court.
7.81
This current legal uncertainty is clearly not in the interests of
patients and their families.[775] Nor
is it in the interests of healthcare professionals. The
Commission is strongly of the view that the law should not operate to deprive
adults who may not have the capacity to consent to medical treatment of the
treatment which adults with capacity could expect to receive in the same
circumstances.[776]
The Commission on the Status of People with Disabilities recommended
that there should be no delay in treating people with disabilities[777]
and that the Department of Health should issue a code of practice to deal with
situations where it is legally possible to institute treatment without consent.[778]
This has not happened to date.
(2)
Methodology
7.82
Aside from emergency situations where the doctrine of necessity may justify
remedial treatment in the absence of consent, there is a need for a comprehensive system of substitute
decision-making for healthcare decisions. The Commission believes that
much of the difficulties outlined in this chapter would be addressed by the introduction
of a broad statutory system for the appointment of assisting and substitute
decision-makers for adults who lack capacity such as that recommended in the
Commission’s Consultation Paper on Law and the Elderly[779]
to replace the current wardship regime. The Commission envisages that its
Report on Vulnerable Adults and the Law will address the specific
aspects of the appointment of substitute decision-makers and the principles
which must be followed in such assisted and substitute decision-making in order
to act in the best interests of the adult. Bearing this in mind, the
Commission’s recommendations for reform in the area of capacity to make
healthcare decisions relate to providing legal and practical certainty in
relation to how capacity to make healthcare decisions should be understood in
law and in practice.
(3)
Functional Test of Capacity
7.83
In accordance with the Commission’s endorsement of a functional approach
to capacity[780] and its
existence at common law in relation to healthcare decisions, the Commission
considers that the statutory functional test of capacity and capacity
legislation which this Consultation Paper recommends should apply to capacity
to make healthcare decisions.[781]
7.84
The Commission recommends that capacity to make healthcare decisions
should be assessed on the basis of the statutory functional test of capacity
proposed in this Consultation Paper.
(4)
Establishment of a Code of Practice
(a)
Establishment of Working Group
7.85
The Medical Council has an important role to play in providing guidance
to its members. While the Medical Council’s ethical guidelines[782] are of
general assistance, they do not comprehensively address capacity issues.
The Commission’s conclusion is that there is a need for more detailed
guidelines on capacity issues relating to healthcare which will be of
assistance across the spectrum of healthcare professionals including, for
example, nurses and dentists.
7.86 In
order to facilitate the formulation of such guidelines, the Commission
considers that the capacity legislation proposed in this Consultation Paper
should make provision for the formulation of a code of practice dealing with
issues in respect of adults who may lack capacity to make a healthcare
descision (“the Code of Practice”). The Commission is in favour of the
proposed capacity legislation[783]
enabling the Minister for Health to appoint a cross-section of representatives
from professional bodies in the healthcare sector, professionals and lay
persons to a working group with a view to formulating the Code of Practice
(“the Working Group on Capacity to Make Healthcare Decisions”).
7.87 Providing
in statute for the establishment of the Working Group on Capacity to Make
Healthcare Decisions in order to formulate a code of practice, rather than
providing detailed rules in the legislation itself, would facilitate future
revision of the Code of Practice without the need to amend the underlying
legislation. This would allow for the guidelines to be responsive to
changes in law, medical practice and ethics. It is envisaged that, as is
the case in Scotland, the code would not be mandatory but would constitute best
practice guidance in this area. Therefore breach of the Code of Practice
would not necessarily constitute a breach of the law but would involve failure
to comply with best practice.[784]
7.88
The Commission recommends that the proposed capacity legislation
should give the Minister for Health the power to appoint a Working Group on
Capacity to Make Healthcare Decisions which would formulate a code of practice
in this area for healthcare professionals.
(b)
Contents of the Code of Practice
7.89 There
are three principal aspects which the Code of Practice should cover:
·
assessment of capacity;
·
the operation of the doctrine of necessity;
·
categories of decision which require to be adjudicated on by a court or
specialist tribunal.
(I)
Assessment of Capacity
7.90
The Commission considers that it is important that the Code of Practice
include guidelines for the assessment of capacity to make healthcare
decisions. The Working Group on Capacity to Make Healthcare Decisions
would commence with the legal presumption of capacity and a functional approach
to capacity as a starting point.[785]
The Code of Practice would need to emphasise that this presumption of
decision-making ability should not be displaced on the basis of age, disability
or a diagnosis of a psychiatric or neurological condition but rather on the
basis of an actual assessment of decision-making capacity in relation to the
decision at hand.
7.91 While
there is a legal presumption of capacity to consent in respect of adults, the
assessment of a patient’s capacity to make a healthcare decision is also a
matter for clinical judgment. To assist medical practitioners in this
task, guidelines in the Code of Practice would clarify the position for
healthcare professionals and would ensure a congruent approach in the
assessment of capacity. Such guidance would be required to proceed on the
basis that any assessment of capacity involves an element of discretion to be
afforded to the assessor since capacity is not black and white and should not
simply be reduced to a scientific test.[786]
The Commission nevertheless considers that it would be useful for the Code of
Practice to set out relevant factors to be taken into account in assessing a
person’s capacity to make a healthcare decision.
7.92
The Commission recommends that the code of practice for healthcare
professionals should provide guidelines on the assessment of capacity to make a
healthcare decision. Such guidelines should take account of factors such
as whether the adult, after a discussion in relation to the healthcare decision
which is pitched at a level appropriate to the adult’s individual level of
cognitive functioning,
· understands
in broad terms the reasons for and nature of the healthcare decision to be
made;
· has
sufficient understanding of the principal benefits and risks involved in the
treatment option being presented and relevant alternative options after these
have been explained to them in a manner and in language appropriate to their
individual level of cognitive functioning;
· understands
the personal relevance of the decision;
· appreciates
the advantages and disadvantages in relation to the choices open to them;
· makes
a voluntary choice.
(II)
The Doctrine of
Necessity
7.93
As the law stands, the common law doctrine of necessity performs a
useful function in allowing health professionals to provide treatment where
there is a necessity to do so. The Commission believes that it is
appropriate to give a certain amount of latitude to medical practitioners who
have to make difficult decisions in the heat of the moment. Indeed,
inappropriate reliance on the doctrine of necessity would largely be addressed
by the establishment of a workable mechanism for substitute and assisted
decision-making for adults who lack capacity as contemplated by the
Commission’s Consultation Paper on Law and the Elderly.[787]
7.94
Therefore the Commission’s preferred approach is not to statutorily
circumscribe the common law doctrine of necessity. Rather, the Commission
considers that it would be of assistance to medical practitioners if the Code
of Practice devised by the proposed Working Group on Capacity to Make
Healthcare Decisions provided some guidelines in relation to the type of
situations in which treatment should be carried out without the consent of the
adult concerned. These guidelines should also deal with the issue of the
type of treatment which should be given if it is likely that the person will
imminently recover capacity and therefore be able to make a decision on what
treatment they would wish or not wish to receive. This would arise, for
example, where the person is temporarily unconscious as opposed to permanently
lacking in capacity to make relevant decisions.
7.95
The Commission recommends that the code of practice for healthcare
professionals should provide guidance concerning the type of urgent situations
in which treatment may be carried out without the consent of the adult
concerned and what type of treatment can be given if it is likely that the
adult concerned will imminently recover capacity.
(III)
Healthcare Decisions
Requiring Court Approval
7.96
A further issue which will require to be addressed in the Report on
Vulnerable Adults and the Law is the question of whether, in the context of
the formulation of capacity and substitute decision-making legislation, certain
healthcare decisions in relation to an adult without the capacity to consent
should be specified as requiring an application to court for approval.
7.97
It is clear that to specify that any proposed treatment of an adult
lacking capacity to consent to treatment which carried a risk of death or
serious injury would require court approval would lead to an overwhelming
number of court applications.[788]
However, it may be considered appropriate that certain major healthcare
decisions should be referred to a court.
7.98
The type of decision in relation to a person lacking capacity to consent
which could qualify in this category may include:[789]
· Non-therapeutic
sterilisation;[790]
· Surgical
implantation of hormones for the purpose of reducing sex drive;[791]
· Withdrawal
of artificial life-sustaining treatment;[792]
· Psychosurgery;[793]
· Electro-convulsive
therapy;[794]
· The
donation of non-regenerative tissue (organ donation) and regenerative tissue
(for example, bone marrow);[795]
· Experimental
treatment of a medical condition outside the context of a clinical trial.[796]
7.99
The Commission envisages that this subject is one which the Working
Group on Capacity to Make Healthcare Decisions could consider.[797]
The subject is one which will require to be revisited and the Commission
welcomes views on the types of decisions which it is considered should require
an application to court rather than a decision of a substitute decision-maker.
7.100
The Commission recommends that the code of practice for healthcare
professionals should provide guidance concerning healthcare decisions which
would require an application to court. The Commission invites views on
the type of decisions which should be included.
8.
Chapter 8
summary of provisional recommendations
Summary of recomm of provisional recommendationsThe
provisional recommendations contained in this Paper may be summarised as
follows:
8.01
The Commission recommends that the law on capacity should reflect an
emphasis on capacity rather than lack of capacity and should be enabling rather
than restrictive in nature, thus ensuring that it complies with relevant
constitutional and human rights standards. [paragraph 1.47]
8.02
The Commission recommends that a predominantly functional approach
should be taken to the issue of legal capacity. This would involve
consideration of a person’s capacity in relation to the particular decision to
be made at the time it is to be made. The Commission also recognises that
where an adult’s lack of capacity is profound and enduring, a new functional
determination may be unnecessary in every situation in which a decision has to
be made. [paragraph 2.40]
8.03
The Commission recommends the enactment of capacity legislation for the
following reasons:
· Existing
legislative and judicial consideration of capacity matters has been piecemeal
rather than systematic and wide-ranging;
· The
law on capacity should be clear, transparent and accessible;
· Capacity
legislation would permit a coherent uniform legislative understanding of legal
capacity to be put in place which would apply in all situations;
· Capacity
legislation could seek to achieve an appropriate balance between autonomy and
protection by promoting the interests of vulnerable adults;
· Capacity
legislation would also be an appropriate vehicle to deal with the consequences
of a finding of lack of capacity, in particular through making provision for
substitute and assisted decision-making structures of the type envisaged in the
Commission’s Consultation Paper on Law and the Elderly. [paragraph 3.12]
8.04
The Commission recommends that the proposed capacity legislation should
use appropriate terminology to refer to persons who lack legal capacity.
[paragraph 3.18]
8.05
The Commission recommends that the proposed capacity legislation should
be drafted in terms which are enabling rather than restrictive in nature.
[paragraph 3.19]
8.06
The Commission recommends that the proposed capacity legislation should
set out a rebuttable presumption of capacity to the effect that every adult is
presumed, until the contrary is demonstrated, to be capable of making decisions
affecting them. [paragraph 3.25]
8.07
The Commission recommends that the proposed capacity legislation should
contain a statutory definition of capacity. [paragraph 3.29]
8.08
The Commission recommends that the proposed capacity legislation should
contain a functional definition of capacity which focuses on an adult’s
cognitive ability to understand the nature and consequences of a decision in
the context of available choices. [paragraph 3.44]
8.09
The Commission recommends that an adult should not be regarded as unable
to make a decision merely because they make a decision which would ordinarily
be regarded as imprudent. [paragraph 3.46]
8.10
The Commission recommends that a person will lack capacity if they are
unable to communicate their choices by any means where communication to a third
party is required to implement the decision. [paragraph 3.49]
8.11
The Commission regards the use of phrases such as ‘idiot’, ‘lunatic’ and
‘person of unsound mind’ in the Lunacy Regulation (Ireland) Act 1871 as
out of step with the contemporary understanding of disability and recommends
that they should not form part of any reforming legislation. [paragraph 4.51]
8.12
The Commission recommends that the proposed capacity legislation should
ensure that a determination of a person’s legal capacity complies with
procedural fairness by ensuring that the person has appropriate assistance in
terms of information, access to representation and other reasonable assistance
which will enable them to understand the implications of the process and to
make submissions in relation to their capacity. [paragraph 4.55]
8.13
The Commission recommends that where it has been determined that a
person lacks capacity in a particular area which has an ongoing impact on their
decision-making ability, the proposed capacity legislation should make
provision for a system of automatic periodic review of that
determination, with appropriate procedural safeguards to protect the rights of
the person concerned. [paragraph 4.56]
8.14
The Commission recommends that the approach to capacity in the Powers
of Attorney Act 1996 be reviewed in the light of the definition of capacity
recommended in this Consultation Paper. [paragraph 4.60]
8.15
The Commission recommends that a presumption of capacity to contract
should form part of a statutory presumption of capacity. [paragraph 5.37]
8.16
The Commission recommends that the proposed capacity legislation should
provide that a contract purportedly entered into by an adult whom it is alleged
lacked contractual capacity may be referred to the Public Guardian by a party
to the contract, a personal guardian or other person connected with a person in
respect of whom it is alleged there was a lack of contractual capacity.
The Commission further recommends that on such a contract being referred to it,
the Public Guardian could, with the consent of the parties, refer the matter to
mediation, or the Public Guardian could examine the matter. The Public
Guardian should be given power to declare the contract binding on both parties
or to declare the contract void for lack of capacity and to make any adjustment
to the rights of the parties considered just in the circumstances. A
decision of the Public Guardian could be appealed to the Circuit Court and such
an appeal would involve a full rehearing of the matter. [paragraph 5.40]
8.17
The Commission recommends that the proposed capacity legislation should
provide that an adult who lacks the capacity to enter into a particular
contract is nonetheless obliged to pay the supplier a reasonable amount for
necessaries supplied.
[paragraph 5.43]
8.18
“Necessaries” should be statutorily defined as goods and services
supplied which are suitable to the person’s reasonable living requirements but
excluding goods and services which could be classed as luxury in nature.
[paragraph 5.44]
8.19
The Commission invites views in relation to the reform of section 5 of
the Criminal Law (Sexual Offences) Act 1993. In particular, views
are invited as to whether the offence should be re-modelled so that it would be
an offence to have or attempt to have sexual intercourse or buggery with a
person who lacked capacity to consent to the relevant act at the time because
they did not understand the nature or reasonably foreseeable consequences of
the act or could not communicate their consent or lack of consent. [paragraph
6.28]
8.20
The Commission recommends that the Marriage of Lunatics Act 1811
be repealed. [paragraph 6.51]
8.21
The Commission recommends that the proposed capacity legislation should
provide that any proposed non-consensual sterilisation of a person with limited
decision-making ability where there is no serious malfunction or disease of the
reproductive organs would require an application to court. [paragraph 6.62]
8.22
The Commission recommends that capacity to make healthcare decisions
should be assessed on the basis of the statutory functional test of capacity
proposed in this Consultation Paper. [paragraph 7.84]
8.23
The Commission recommends that the proposed capacity legislation should
give the Minister for Health the power to appoint a Working Group on Capacity
to Make Healthcare Decisions which would formulate a code of practice in this area
for healthcare professionals. [paragraph 7.88]
8.24
The Commission recommends that the code of practice for healthcare
professionals should provide guidelines on the assessment of capacity to make a
healthcare decision. Such guidelines should take account of factors such
as whether the adult, after a discussion in relation to the healthcare decision
which is pitched at a level appropriate to the adult’s individual level of
cognitive functioning,
· understands
in broad terms the reasons for and nature of the healthcare decision to be
made;
· has
sufficient understanding of the principal benefits and risks involved in the
treatment option being presented and relevant alternative options after these
have been explained to them in a manner and in language appropriate to their
individual level of cognitive functioning;
· understands
the personal relevance of the decision;
· appreciates
the advantages and disadvantages in relation to the choices open to them;
· makes
a voluntary choice. [paragraph 7.92]
8.25 The
Commission recommends that the code of practice for healthcare professionals
should provide guidance concerning the type of urgent situations in which
treatment may be carried out without the consent of the adult concerned and
what type of treatment can be given if it is likely that the adult concerned
will imminently recover capacity. [paragraph 7.95]
8.26
The Commission recommends that the code of practice for healthcare
professionals should provide guidance concerning healthcare decisions which
would require an application to court. The Commission invites views on
the type of decisions which should be included. [paragraph 7.100]
APPENDIX A LIST OF LAW REFORM COMMISSION PUBLICATIONS
|
First Programme for Examination of Certain Branches of the Law with a View to their Reform (December 1976) (Prl 5984)
|
€0.13 |
|
Working Paper No 1-1977, The Law Relating to the Liability of Builders, Vendors and Lessors for the Quality and Fitness of Premises (June 1977)
|
€1.40 |
|
Working Paper No 2-1977, The Law Relating to the Age of Majority, the Age for Marriage and Some Connected Subjects (November 1977)
|
€1.27 |
|
Working Paper No 3-1977, Civil Liability for Animals (November 1977)
|
€3.17 |
|
First (Annual) Report (1977) (Prl 6961)
|
€0.51 |
|
Working Paper No 4-1978, The Law Relating to Breach of Promise of Marriage (November 1978)
|
€1.27 |
|
Working Paper No 5-1978, The Law Relating to Criminal Conversation and the Enticement and Harbouring of a Spouse (December 1978)
|
€1.27 |
|
Working Paper No 6-1979, The Law Relating to Seduction and the Enticement and Harbouring of a Child (February 1979)
|
€1.90 |
|
Working Paper No 7-1979, The Law Relating to Loss of Consortium and Loss of Services of a Child (March 1979)
|
€1.27 |
|
Working Paper No 8-1979, Judicial Review of Administrative Action: the Problem of Remedies (December 1979)
|
€1.90 |
|
Second (Annual) Report (1978/79) (Prl 8855)
|
€0.95
|
|
Working Paper No 9-1980, The Rule Against Hearsay (April 1980)
|
€2.54 |
|
Third (Annual) Report (1980) (Prl 9733)
|
€0.95 |
|
First Report on Family Law – Criminal Conversation, Enticement and Harbouring of a Spouse or Child, Loss of Consortium, Personal Injury to a Child, Seduction of a Child, Matrimonial Property and Breach of Promise of Marriage (LRC 1-1981) (March 1981)
|
€2.54 |
|
Working Paper No 10-1981, Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws (September 1981)
|
€2.22 |
|
Fourth (Annual) Report (1981) (Pl 742)
|
€0.95
|
|
Report on Civil Liability for Animals (LRC 2-1982) (May 1982)
|
€1.27 |
|
Report on Defective Premises (LRC 3-1982) (May 1982)
|
€1.27 |
|
Report on Illegitimacy (LRC 4-1982) (September 1982)
|
€4.44 |
|
Fifth (Annual) Report (1982) (Pl 1795)
|
€0.95
|
|
Report on the Age of Majority, the Age for Marriage and Some Connected Subjects (LRC 5-1983) (April 1983)
|
€1.90 |
|
Report on Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters (LRC 6-1983) (November 1983)
|
€1.27 |
|
Report on Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws (LRC 7-1983) (December 1983)
|
€1.90
|
|
Report on Divorce a Mensa et Thoro and Related Matters (LRC 8-1983) (December 1983)
|
€3.81 |
|
Sixth (Annual) Report (1983) (Pl 2622)
|
€1.27 |
|
Report on Nullity of Marriage (LRC 9-1984) (October 1984)
|
€4.44 |
|
Working Paper No 11-1984, Recognition of Foreign Divorces and Legal Separations (October 1984)
|
€2.54 |
|
Seventh (Annual) Report (1984) (Pl 3313)
|
€1.27
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Consultation Paper on Intoxication as a Defence to a Criminal Offence (February 1995)
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Consultation Paper on the Statutes of Limitation: Claims in Contract and Tort in Respect of Latent Damage (Other Than Personal Injury) (November 1998)
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Twentieth (Annual) Report (1998) (PN 7471)
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Consultation Paper on Statutory Drafting and Interpretation: Plain Language and the Law (LRC CP14-1999) (July 1999)
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Second Programme for examination of certain branches of the law with a view to their reform: 2000-2007 (PN 9459) (December 2000)
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Consultation Paper on the Law of Limitation of Actions arising from Non-Sexual Abuse Of Children (LRC CP16-2000) (September 2000)
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Consultation Paper on Homicide: The Mental Element in Murder (LRC CP17-2001) (March 2001)
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Consultation Paper on Penalties for Minor Offences (LRC CP18-2002) (March 2002)
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Consultation Paper on Prosecution Appeals in Cases brought on Indictment (LRC CP19-2002) (May 2002)
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Report on the Indexation of Fines: A Review of Developments (LRC 65-2002) (July 2002)
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Report on Title by Adverse Possession of Land (LRC 67-2002) (December 2002)
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Consultation Paper on Judicial Review Procedure (LRC CP20-2003) (January 2003)
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Consultation Paper on Public Inquiries Including Tribunals of Inquiry (LRC CP 22 – 2003) (March 2003)
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[1]
‘Vulnerable Groups and the Law’ was identified as a subject for consideration
in the Law Reform Commission’s Second Programme for examination of certain
branches of the law with a view to their reform: 2000 - 2007 (2000) PN
9459.
[2]
Law Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003).
[3]
Law Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at 2.
[4]
Law Reform Commission Seminar Paper on Consultation Paper: Law and the
Elderly (LRC SP 2-2003) (November 2003).
[5]
Cahill
v Cahill (1883) 8 App. Ca. 420. This incapacity was removed by the Married
Women’s Status Act 1957.
[6]
The scope of this Consultation Paper is limited to the legal capacity of
adults.
[7]
Section 6 of the Guardianship of Infants Act 1964 (as amended).
[8]
Other relevant areas which are not given specific consideration in this
Consultation Paper include capacity to litigate, capacity to vote and capacity
to serve on a jury.
[9]
British Medical Association and the Law Society Assessment of Mental
Capacity: Guidance for Doctors and Lawyers (2nd ed 2004) at 3.
[10]
See Law Reform Commission Consultation Paper on Law and the Elderly (LRC
CP 23-2003) at Chapter 2.
[11]
The capacity of a person to be subjected to legal liability for torts or crimes
is outside the scope of this Consultation Paper. The Law Reform Commission
has previously published a Report on the Liability in Tort of Mentally
Disabled Persons (LRC 18-1985), a Report on Sexual Offences against the
Mentally Handicapped (LRC 33-1990), and a Report on Oaths and
Affirmations (LRC 34-1990).
[12]
Law Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at Chapter 6. See further the Introduction to this Consultation
Paper.
[13]
In Ireland, the term ‘intellectual disability’ has widely replaced ‘mental
handicap’ or ‘mental retardation’.
[14]
Irish College of Psychiatrists Proposed Model for the Delivery of a Mental
Health Service to People with Intellectual Disability (Occasional Paper
OP58 2004) at 10.
[15]
See World Health Organisation Report on Ageing and Intellectual Disabilities
(Geneva 2000).
[16]
For example, through service providers who provide empowerment programmes for
adults with intellectual disability.
[17]
National Intellectual Database Committee Annual Report 2003 (Health
Research Board 2004) Appendix B.
[18]
6.3%
were categorised as ‘not verified’: National Intellectual Database Committee Annual
Report 2003 (Health Research Board 2004) at Table 2.1.
[19]
There
was insufficient information on the residential circumstances of 1,049 adults
in this age category.
[20]
See
Weiner “Legal and Ethical Issues for Patients with Dementia and their Families”
Geriatric Times Jan/Feb 2004 Vol V Issue 1.
[21]
Source: The Alzheimer Society of Ireland.
[22]
National Council of Ageing and Older People Population Ageing in Ireland
2002-2021 (Report no. 81) (2004) at 2.
[23]
Source: Mental Health Ireland.
[24]
The
subject of involuntary psychiatric admission is outside the scope of this
Consultation Paper. See further Mills “The Mental Health Act 2001:
Involuntary psychiatric treatment and detention” (2003) 8(1) BR 42.
[25]
Section 3(2) of the Mental Health Act 2001.
[26]
See
The British Psychological Society Recent Advances in Understanding Mental
Illness and Psychotic Experiences (2000).
[27]
An
Expert Group on Mental Health Policy was established in August 2003 to produce
a national policy framework for mental health services: see www.mentalhealthpolicy.ie.
See further Healy “Mental health rethink signalled” The Irish Times 21 April
2005 at 11.
[28]
The
National Disability Authority has called for questions on disability to be
included in the census: O’Brien “Authority calls for national study on
disability” The Irish Times 27 May 2004.
[29]
Report
of the Inspector of Mental Hospitals for the year ending 31 December 2003
(PRN 2424) (Stationery Office 2004) at 1.
[30]
See
Amnesty International (Irish Section) Mental Illness: The Neglected Quarter (Dublin
2003).
[31]
Headway Ireland: www.headwayireland.ie.
[32]
See
McEnroe Head Injury Management (Headway Ireland 1994).
[33]
Ibid.
[34]
See
Enderby, “The Testamentary Capacity of Dysphasic Patients” (1994) 62 Medico-Legal
Journal 70.
[35]
See
Lush “Capacity” in Whitehouse (ed) Society of Trust and Estate Practitioners Finance
and the Law for the Older Client (Lexis Nexis 2002) at D1.3; King “Paternalism
and the Law: Taking a Closer Look” (2004) 4 UCDLR 134.
[36]
See
Quinn and Degener Human Rights and Disability (United Nations
HR/PUB/02/01 2002) Chapter 1, Commission on the Status of People with
Disabilities A Strategy for Equality: Report of the Commission on the Status
of People with Disabilities (1996) at 2.2; Disability Legislation
Consultation Group Equal Citizens – Proposals for Core Elements of
Disability Legislation (Disability Legislation Consultation Group 2003) at
Part IV. These changes are evident in the Disability Bill 2004 and
the Comhairle (Amendment) Bill 2004.
[37]
Commission on the Status of People with Disabilities A Strategy for
Equality: Report of the Commission on the Status of People with Disabilities
(1996). See also Department of Justice, Equality and Law Reform Towards
Equal Citizenship: Progress Report on the Implementation of the Recommendations
of the Commission on the Status of People with Disabilities (Stationery
Office 2000).
[38]
This
change of emphasis from a medical view of disability to a social approach is
evident in the United Nations’ Standard Rules for the Equalisation of
Opportunities for People with Disabilities General Assembly Resolution
48/96 of 20 December 1993.
[39]
Commission on the Status of People with Disabilities A Strategy for
Equality: Report of the Commission on the Status of People with Disabilities (1996)
at paragraph 2.1.
[40]
Other
organisations with relevant functions include the Equality Tribunal, the Mental
Health Commission, the Inspector of Mental Hospitals, the Ombudsman, and the
Human Rights Commission.
[41]
See
paragraphs 5.30 to 5.32 below.
[42]
For background to the 2004 Bill, in particular the absence of a rights-based
approach in the Disability Bill 2001 see: Disability Legislation
Consultation Group Equal Citizens: Proposals for Core Elements of Disability
Legislation (2003).
[43]
The
Employment Equality Acts 1998 to 2004.
[44]
The Equal
Status Acts 2000 to 2004. See paragraphs 5.30 to 5.32 below.
[45]
In
2000 a mainstreaming initiative was launched to require public bodies to end
segregation of services by integrating their services for people with
disabilities with those for other citizens.
[46]
Vol.
591 No.5 Dáil Eireann Parliamentary Debates 4 November 2004 Col. 1373.
[47]
Many
commentators have pointed out that a statutory entitlement to an assessment of
need would be devoid of practical effect if there was no guarantee built into
the legislation to ensure that the relevant services required would be provided
to the individual: see generally National Disability Authority NDA Response
to the Disability Bill 2004 and the Comhairle (Amendment) Bill 2004 (2004).
[48]
In the
Law Reform Commission’s Seminar Paper Consultation Paper on Law and the
Elderly (LRC SP2-2003) it was stated “law does not operate in a vacuum and
that any system of protection raises issues not only of basic human rights but
also wider social issues in relation to the appropriate response of society to
dealing with its vulnerable citizens” (at 2).
[49]
See
generally Lachwitz and Breitenbach Human Rights and Intellectual Disability (Inclusion
International 2002).
[50]
[1996]
2 IR 79. See further paragraph 7.52 ff below.
[51]
It is
not clear whether Hamilton CJ considered that the right to self-determination
should be independently recognised as an unspecified right under Article
40.3.1° of the Constitution.
[52]
Ibid
at 126.
[53]
Brandeis “The Right to Privacy” (1890) 4 Harv L. Rev 193.
[54]
See
Walley “Privacy Law in Ireland: A Jurisprudential Cinderella” (1999) 3(1) IIPR
6.
[55]
See Ryan
v Attorney General [1965] IR 294.
[56]
[1984] IR 36. A constitutional right
to marital privacy was recognised by the Supreme Court in McGee v Attorney
General [1974] IR 284.
[57]
[1984] IR 36, 71.
[58]
[1987]
IR 587.
[59]
[1987]
IR 587, 592. See also Foy v An t-Ard Chlaraitheoir (McKechnie
J) 9 July 2002; Bailey v Flood (Supreme Court) 14 April 2000.
[60]
Kennedy
v Ireland [1987] IR 587, 592.
[61]
See
Forde Constitutional Law (2nd ed First Law 2004) at 373.
[62]
[1992]
2 IR 333, 349.
[63]
[1996]
2 IR 79, 163.
[64]
High
Court (McKechnie J) 9 July 2002.
[65]
The
dignity of the individual is also acknowledged in In re Offences Against the
State (Amendment) Bill 1940 [1940] IR 470 and in In re Clarke [1950]
IR 235.
[66]
The Employment
Equality Acts 1998 to 2004 and the Equal Status Acts 2000 to
2004 go further in specifically enumerating disability as a prohibited
ground of discrimination. Article 20 of the Charter of Fundamental
Rights for the European Union (see further paragraph 1.45 below) also
enshrines equality before the law and Article 21 lists disability as a
prohibited ground of discrimination.
[67]
Quinn’s
Supermarket v Attorney General [1972] IR 1, 14 per Walsh J.
This rationale for Article 40.1 was approved by the Supreme Court in An
Blascaod Mor Teoranta v Commissioners of Public Works (No.3) [2000] 1 IR 6.
[68]
[1950]
IR 235. See also Re Keogh High Court (Finnegan P) 15 October 2002
where it was held that Article 40.1 permitted differences of capacity be taken
into account in a wardship inquiry. See further paragraph 4.18 below.
[69]
[1950]
IR 235, 247-248.
[70]
O’B
v S [1972] IR 144; Brennan v Attorney General [1983] ILRM 449; Re
Article 26 of the Constitution and the Employment Equality Bill, 1996 [1997] 2 IR 321; Re Article 26 of the
Constitution and the Planning and Development Bill, 1999 [2000] 2 IR 321.
[71]
Quinn’s
Supermarket Ltd v Attorney General [1972] IR 1; O’Brien v Manufacturing
Engineering Co Ltd [1973] IR 334. See generally Hogan and Whyte J.M.
Kelly: The Irish Constitution (4th ed Butterworths 2003) at
paragraph 7.2.64 ff.
[72]
See
further paragraph 5.30-5.32 below.
[73]
The
majority of the Review Group on the Constitution and the Commission on the
Status of People with Disabilities had recommended the more fundamental course
of disability and other grounds of prohibited discrimination being expressly
listed in Article 40.1: see Report of the Constitution Review Group (Pn
2632 Government Publications 1996) at 220 – 243; Commission on the Status of
People with Disabilities A Strategy for Equality: Report of the Commission
on the Status of People with Disabilities (1996) at paragraph 2.7.
[74]
See Re
Article 26 of the Constitution and the Health (Amendment) (No.2) Bill 2004 Supreme
Court 16 February 2005.
[75]
4
November 1950, E.T.S. No. 005.
[76]
See
paragraphs 6.07 and 6.21 below. Personal autonomy and dignity are aspects
of the right to respect for private life guaranteed by Article 8 of the ECHR: Pretty
v United Kingdom (2002) 35 EHRR 1.
[77]
See
paragraph 6.08 below.
[78]
Disability is not specifically listed in the enumerated grounds of prohibited
discrimination in Article 14 of the ECHR but is generally regarded as coming
within the words “or other status” in Article 14. See Spellissy “European
Convention on Human Rights - Potential Implications for Disability
Rights in Ireland” in Independent Law Centres Networks Celebrating the
European Convention on Human Rights Act 2003: Airey v Ireland 25 years on (2004).
[79]
See
Connolly “The European Convention on Human Rights” in Heffernan (ed) Human
Rights: A European Perspective (Round Hall 1994) at 44.
[80]
See
generally Kilkelly (ed) ECHR and Irish Law (Jordans 2004); Independent
Law Centres Networks Celebrating the European Convention on Human Rights
Act 2003: Airey v Ireland 25 years on (2004).
[81]
See
the Long Title to the European Convention on Human Rights Act 2003;
Hogan “Incorporation of the ECHR: Some Issues of Methodology and Process”, in
Kilkelly (ed) ECHR and Irish Law (Jordans 2004).
[82]
Recommendation
no. R(99)4 of the Committee of Ministers to Member States on Principles
Concerning the Legal Protection of Incapable Adults (adopted 23 February
1999). See also Report of Group of Specialists on Incapable and other
Vulnerable Adults (CJ-S-MI, 21 January 1997).
[83]
The UN
Declaration of Human Rights is not binding but operates as “a common
standard of achievement for all peoples and all nations”. However, the
Covenants create binding obligations for the States which have ratified or
acceded to them. See Quinn and Degener Human Rights and Disability:
The current use and future potential of United Nations instruments in the
context of disability (United Nations 2002).
[84]
(999
UNTS 171). See also the Declaration on the Rights of Disabled Persons (1975).
Article 3 emphasises that persons with a disability have an inherent right to
respect for their human dignity and equal rights to their fellow citizens of
the same age.
[85]
(993
UNTS 3).
[86]
General Assembly Resolution 2856 (XXVI) of 20 December 1971.
[87]
Ibid
Article 7.
[88]
General Assembly Resolution 46/119 of 17 December 1991, Article 3, principle 1,
paragraph 6.
[89]
Endorsed by the UN General Assembly in 1982, Resolution 37/51.
[90]
Adopted 1991, Resolution 46/91.
[91]
See
Despouy Human Rights and Disabled Persons (United Nations 1993) at
paragraph 280-281; Quinn and Degener “Expanding the system: the debate about a
disability-specific convention”, in Degener and Quinn Human Rights and
Disability (United Nations 2002).
[92]
See,
for example, the UN Convention on the Rights of the Child (1989) and the
International Convention on the Elimination of All Forms of Racial
Discrimination (1966).
[93]
General Assembly Resolution 56/168 of 19 December 2001.
[94]
During
its fourth session the Ad Hoc Committee concluded a first reading of the draft
text of the Convention: see Report of Ad Hoc Committee on a
Comprehensive and Integral International Convention on the Protection and
Promotion of the Rights and Dignity of Persons with Disabilities on its fourth
session (A/59/360 2004).
[95]
OJ No.
364/1 (2000).
[96]
Article 1 of the Nice Treaty.
[97]
See
Law Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at paragraph 6.08-6.09.
[98]
See paragraph 1.04 ff above.
[99]
See Scottish Law Commission Mentally Disabled Adults: Legal Arrangements for
Managing their Welfare and Finances (Discussion Paper No. 1994 1991);
Scottish Law Commission Report on Incapable Adults (No. 151 1995); Law
Commission of England and Wales Mentally Incapacitated Adults and
Decision-making: An Overview (Consultation Paper No. 119 1991); Law
Commission of England and Wales Mentally Incapacitated Adults and
Decision-making: A New Jurisdiction (Consultation Paper No. 128 1993); Law
Commission of England and Wales Mentally Incapacitated Adults and
Decision-making: Medical Treatment and Research (Consultation Paper No. 129
1993); Law Commission of England and Wales Mental Incapacity (Report No.
231 1995); Adults with Incapacity (Scotland) Act 2000; English Mental
Capacity Act 2005.
[100]
[1982] 40 O.R. (2d) 383.
[101]
See Chapter 4 below.
[102]
Ibid.
[103]
Law Reform Commission Seminar Paper on Law and the Elderly (LRC
SP2-2003) at 7.
[104]
Law Commission of England and Wales Mental Incapacity (No. 231 1995) at
paragraph 3.3.
[105]
See Re A Ward of Court (No.2) [1996] 2 IR 79.
[106]
See Law Reform Commission Consultation Paper on Law and the Elderly (LRC
CP 23-2003) at paragraph 1.22.
[107]
See
Law Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at paragraph 1.20.
[108]
See
President’s Commission for the Study of Ethical Problems in Medicine and
Biomedical Healthcare Research Making Healthcare Decisions: A Report
on the Ethical and Legal Implications of Informed Consent in the Patient –
Practitioner Relationship Volume One (New York 1982) at 170.
[109]
See
Chapter 7 below.
[110]
Law
Commission of England and Wales Mental Incapacity (No. 231 1995) at
paragraph 3.4.
[111]
[2003] 3 All ER 162, 190. See further
paragraph 2.23ff below.
[112]
[1994]
1 All ER 819.
[113]
See
President’s Commission for the Study of Ethical Problems in Medicine and
Biomedical Healthcare Research Making Healthcare Decisions A Report on the
Ethical and Legal Implications of Informed Consent in the Patient–Practitioner
Relationship Volume One (New York 1982) at 3.
[114]
See
Law Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at Chapter 2.
[115]
See
Chapter 6 below.
[116]
See
Chapter 7 below.
[117]
See
President’s Commission for the Study of Ethical Problems in Medicine and
Biomedical Healthcare Research Making Healthcare Decisions: A Report
on the Ethical and Legal Implications of Informed Consent in the
Patient–Practitioner Relationship op cit fn16 at 170 ff.
[118]
See
Law Commission of England and Wales Mental Incapacity (No 231 1995).
[119]
[1978]
2 All ER 595.
[120]
On capacity to make a gift see further Law Reform Commission Consultation
Paper on Law and the Elderly (LRC CP 23-2003) at paragraph 1.07.
[121]
[1978]
2 All ER 595, 601.
[122]
[1953]
2 All ER 408.
[123]
Law
Commission of England and Wales Mental Incapacity (No 231 1995) at
paragraph 3.5.
[124]
Law
Commission of England and Wales Mental Incapacity (No. 231 of
1995). See also Lord Chancellor’s Department Who Decides? Making
decisions on behalf of mentally incapacitated adults (CM 3808) (The
Stationery Office 1997) at paragraph 3.6.
[125]
Lord
Chancellor’s Department Making Decisions (CM 4465) (1999) at paragraph
3.7.
[126]
Department for Constitutional Affairs The Government Response to the
Scrutiny Committee’s Report on the draft Mental Incapacity Bill (2004) at
9, Recommendation 11. See also paragraph 2.10 above.
[127]
Lush
“Masterman-Lister and the Capacity to Manage One’s Property and Affairs” (2002)
3 Elder Law and Finance 73 at 75-76.
[129]
[2002]
EWHC 417.
[130]
[2003]
3 All ER 182, paragraph 26.
[131]
See
for example, the Wards of Court regime discussed in Chapter 4 below.
[132]
In the
area of contractual capacity, a presumption of capacity does not operate: see
paragraph 5.04 below.
[133]
See Scottish Law Commission Mentally Disabled Adults – Legal Arrangements
for Managing their Welfare and Finances (Discussion Paper No. 94 1991) at
paragraph 7.4 ff; Law Commission of England and Wales Mentally
Incapacitated Adults and Decision-Making: An Overview (Law Com No 119 1991)
at paragraph 2.10.
[134]
See
paragraph 2.32 below.
[135]
See
Chapter 7 below.
[136]
Bankes
v Goodfellow (1870) LR 5 QB 549. See further Law Reform Commission Consultation
Paper on Law and the Elderly (LRC CP 23-2003) at Chapter 2.
[137]
Re
Beaney [1978] 2 All ER 595.
[138]
Masterman-Lister
v Brutton and Co. [2003] 3 All ER 162.
[139]
Section 18(3) of the Personal Injuries Assessment Board Act 2003 provides
that if the Personal Injuries Assessment Board is provided with a written
medical opinion to the effect that the person is “not of sound mind” the presumption
of capacity “shall be regarded as rebutted”.
[140]
Scottish Law Commission Mentally Disabled Adults – Legal Arrangements for
Managing their Welfare and Finances (Discussion Paper No. 94 1991) at paragraph
7.7.
[141]
Masterman-Lister
v Brutton & Co. [2003] 3 All ER 162. See paragraph 2.23 ff
above.
[142]
Attorney-General
v Parnther (1792) 3 Bro CC 441; Hassard v Smith (1872) IR 6 Eq
429. See Lush ‘Capacity’ in Whitehouse (ed) Society of Trust and Estate
Practitioners Finance and the Law for the Older Client (LexisNexis 2002)
at D1.5.
[143]
[2003] 3 All ER 162. See paragraph
2.23 ff above.
[144]
[2003] 3 All ER 162, 169.
[145]
See
paragraph 1.26 ff above.
[146]
Self-determination relates to an individual’s exercise of the capacity to form,
revise and pursue personal plans for life. See generally Dworkin Autonomy
and Informed Consent: The Theory and Practice of Autonomy (Cambridge
University Press 1988).
[147]
Gordon
and Verdun-Jones Adult Guardianship Law in Canada (Carswell 1992) at
6-35.
[148]
See
paragraph 1.19 ff above.
[149]
John
Stuart Mill On Liberty and Other Essays (Oxford University Press 1991)
at 75.
[150]
Council of Europe Committee of Ministers Recommendation No. R (99) on
Principles Concerning the Legal Protection of Incapable Adults (23 February
1999). See paragraph 1.37 ff above.
[151]
[2003] 3 All ER 162. See paragraph
2.23 ff above.
[152]
See
also South African Law Reform Commission Assisted Decision-making: Adults
with Impaired Decision-making Capacity (Discussion Paper 105) (January
2004) which includes a draft bill embracing a functional, cognitive ability
approach to capacity.
[153]
See
paragraphs 2.10 and 2.21 above.
[154]
See House of Lords / House of Commons Joint Committee Report on the Draft
Mental Incapacity Bill (HL Paper 189-1 HC 1083-1) (HMSO 2003) at 14.
[155]
Protection
of Personal and Property Rights Act 1988.
[156]
See, for example, Guardianship Act 1997 (New South Wales) and Adult
Guardianship Act 2004 (Northwest Territories).
[157]
See, for example, Ontario’s Consent to Treatment Act 1995, Substitute
Decisions Act 1995 and Advocacy Act 1995.
[158]
Betreungsgesetz
1990.
[159]
See, for example, South African Law Reform Commission Assisted
Decision-making: Adults with Impaired Decision-making Capacity (Discussion
Paper 105) (January 2004).
[160]
See Scottish Law Commission Mentally Disabled Adults: Legal Arrangements for
Managing their Welfare and Finances (Discussion Paper No. 94) (1991);
Scottish Law Commission Report on Incapable Adults (No. 151) (1995);
Ward Adult Incapacity (W. Green / Sweet & Maxwell 2003).
[161]
See also Department for Constitutional Affairs Mental Capacity Bill: Draft
Code of Practice (2004).
[162]
See Law Commission Mentally Incapacitated Adults and Decision-making:
Medical Treatment and Research (No. 129 1993); Law Commission Mental
Incapacity (Report No. 231 HMSO 1995); Lord Chancellor’s Department Who
Decides? Making Decisions on Behalf of Mentally Incapacitated Adults (December
1997) (Cm 3803); Report of the Joint Committee on the Draft Mental
Incapacity Bill (HL Paper 189-1 HC 1083-1) (The Stationery Office 2003).
[163]
Law
Commission Mental Incapacity op cit fn9 at paragraph 2.51.
[164]
The
law on selected capacity issues is examined in Chapters 4-7 of this
Consultation Paper.
[165]
See
Law Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003), Chapter 2.
[166]
See
paragraph 6.29 ff below.
[167]
The
Supreme Court decision in Re a Ward of Court (No.2) [1996] 2 IR 79 is a
notable exception. See paragraph 1.27 above; paragraph 7.52 ff below.
[168]
See
Chapter 4 below.
[169]
“Litigation as a tool for law reform tends to chaos rather than coherence.”:
The Rt. Hon. Baroness Hale of Richmond “Law Maker or Law Reformer: what is a
Law Lady for?” John Maurice Memorial Lecture (2005) at 6.
[170]
See
Law Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at Chapter 6.
[171]
Comments made by Adrian Ward at a seminar in relation to the situation in
Scotland prior to the enactment of the Adults with Incapacity (Scotland) Act
2000: see Ward Adult Incapacity (Edinburgh 2003) (W. Green /Sweet
& Maxwell) at 31.
[172]
Disability Legislation Consultation Group Equal Citizens: Proposals for Core
Elements of Disability Legislation (2003), Part IV at 33.
[173]
Comments made by Adrian Ward at a seminar in relation to the situation in
Scotland prior to the enactment of the Adults with Incapacity (Scotland) Act
2000: see Ward Adult Incapacity (Edinburgh 2003) (W. Green /Sweet
& Maxwell) at 31.
[174]
See
further Chapter 2 above.
[175]
See
paragraph 1.19 ff above.
[176]
Law
Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003), Chapter 6.
[177]
See
paragraphs 3.13 - 3.14 below.
[178]
See
further Law Reform Commission Consultation Paper on Law and the Elderly (LRC
CP 23-2003) at Chapter 6.
[179]
See,
for example, paragraph 5.41 - 5.42 below.
[180]
See,
for example, the discussion on wardship in Chapter 4 below.
[181]
See
generally Chapter 1 above and Chapter 4 below.
[182]
See Dolan
v Registrar of Wards of Court High Court (Kelly J) 19 March 2004 (ex
tempore) discussed at paragraph 4.19 - 4.20 below.
[183]
In Winterwerp
v The Netherlands (1979-80) 2 EHRR 387, paragraph 37, the European Court of
Human Rights stated that the term “unsound mind” should not be used as a means
to incarcerate persons who were simply socially deviant or who held unpopular
political views. See further paragraph 4.12 ff below.
[184]
Commission on the Status of People with Disabilities A Strategy for
Equality: Report of the Commission on the Status of People with Disabilities (1996)
at 2.2. See also Department of Justice, Equality and Law Reform Towards
Equal Citizenship: Progress Report on the Implementation of the Recommendations
of the Commission on the Status of People with Disabilities (Stationery
Office 2000) at 13-14.
[185]
See
paragraph 1.19 ff above.
[186]
See
paragraph 2.28 ff above.
[187]
See
paragraph 2.40 ff above.
[188]
See,
for example, section 3 of Saskatchewan’s The Adult Guardianship and
Co-decision-making Act 2000, section 1(1) of the Nova Scotia’s Guardianship
and Trusteeship Act 1994, section 7(a) of Queensland’s Guardianship and
Administration Act 2000.
[189]
Law
Commission of England and Wales Mental Incapacity (No 231 1995) at
paragraph 3.2.
[190]
Section 1(2) of the Mental Capacity Act 2005 states that “[a] person
must be assumed to have capacity unless it is established that he lacks
capacity.”
[191]
Under
the Age of Legal Capacity (Scotland) Act 1991, a person over the age of
16 is deemed to be an adult.
[192]
See
Law Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at paragraph 1.23.
[193]
See
paragraph 2.33 above.
[194]
[2002]
3 All ER 162.
[195]
See
paragraph 7.24 below.
[196]
The
search for a single test of capacity has been likened to the search for the
Holy Grail: Roth, Meisel and Lidz “Test of Competency to Consent to Medical
Treatment” (1977) 134 American Journal of Psychiatry 279; Kapp “Evaluating
Decision-making Capacity in the Elderly: A Review of Recent Literature” in
Dejowski (ed) Protecting Judgment-Impaired Adults (New York 1990) at N7.
[197]
See
Chapter 2 above.
[198]
See
Department for Constitutional Affairs Mental Capacity Bill: Draft Code of
Practice (2004).
[199]
The
discrete area of assessment of capacity to make healthcare decisions is
considered at paragraphs 7.18 ff and 7.90 ff below.
[200]
See
Chapters 4-7 below.
[201]
The
formulation of guiding principles for persons assessing capacity and making
substitute decisions will be examined in the Commisssion’s final report on Vulnerable
Adults and the Law.
[202]
Law
Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at paragraph 1.54.
[203]
Patrick and Ward Mental Health (Scotland) Act 1984 and Adults with
Incapacity (Scotland) Act 2000 (Sweet and Maxwell Edinburgh 2001) at 187.
[204]
See
Begley and Jeffreys Representing the Elderly Client (Panel 2000
loose-leaf updated) at paragraph 2.65.
[205]
Hoggett Mental Health (1976) at 59.
[206]
Law
Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at paragraph 1.28.
[207]
Berghmans and Widdershoven “Ethical Perspective on Decision-Making Capacity and
Consent for Treatment and Research” (2003) 22 Med Law 391 at 394. See
generally Law Commission Mentally Incapacitated Adults and Decision-Making:
An Overview (Consultation Paper No.119 HMSO 1991).
[208]
Law
Reform Commission Seminar Paper on Law and the Elderly (LRC SP2-2003) at
9.
[209]
South
African Law Reform Commission Assisted Decision-making: Adults with Impaired
Decision-making Capacity (Discussion Paper 105) (January 2004) at 81.
[210]
Section 2 of the Adult Guardianship and Co-decision-making Act 2000.
[211]
A
person’s cognitive ability involves the capacity to reason, remember,
understand, solve problems and make decisions.
[212]
See
section 3(2) of the English Mental Capacity Act 2005.
[213]
See
section 3(3) of the English Mental Capacity Act 2005.
[214]
See
paragraph 2.34 ff above.
[215]
See Masterman
v Lister [2003] 3 All ER 182, paragraph 26; paragraphs 2.25 and 2.36 above.
[216]
Section 3(c) of the Adult Guardianship and Co-decision-making Act 2000.
[217]
See
Law Commission Mental Incapacity (Law Com No. 231) at paragraph 3.19;
section 1(4) of the Mental Capacity Act 2005; Department for Constitutional
Affairs Mental Capacity Bill: Draft Code of Practice (2004) at 21.
[218]
Section 1(3) of the Protection of Personal and Property Rights Act 1988.
[219]
(1904)
4 NIJR 164.
[220]
See
also Re AK (Medical Treatment: Consent) [2001] 1 FLR 129.
[221]
See Law Reform Commission Consultation Paper on Law and the Elderly (LRC
CP 23-2003) at Chapter 3 (enduring powers of attorney) amd Chapter 4
(wardship).
[222]
See paragraph 2.40 above.
[223]
For a detailed consideration of the operation of the wardship jurisdiction in
Ireland see O’ Neill Wards of Court in Ireland (First Law 2004); Law
Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) (Chapter 4). See also Costello “Wards of Court – A general
guideline of the procedure involved” (May 1993) Law Society Gazette 143;
McLoughlin “Wardship: A Legal and Medical Perspective” (1998) MLJI 61; Ní
Chúlacháin “Wardship: Time for Reform?” (2000) Bar Review 239.
[224]
The current basis of the jurisdiction is variously attributed to the parens
patriae prerogative, Article 40.3.2° of the Constitution and the inherent
jurisdiction of the High Court: see Tomkin and McAuley “Re a Ward of Court: Legal
Analysis” (1995) 1 MLJI 45; Law Reform Commission Consultation Paper on Law
and the Elderly (LRC CP 23-2003) at paragraph 4.04 ff; O’Neill Wards
of Court in Ireland (First Law 2004) at paragraph 1.9-1.12.
[225]
See paragraph 1.19 ff above.
[226]
See Chapter 2 above.
[227]
See Council of Europe Recommendation no. (99)4 of the Committee of Ministers
to Member States on Principles concerning the Legal Protection of Incapable
Adults (adopted 23 February 1999) Principle 7; paragraph 1.37 ff above.
[228]
Section 9(2) of the Courts (Supplemental Provisions) Act 1961 enables
the President of the High Court to assign another High Court judge to exercise
the jurisdiction.
[229]
See generally Courts Service Office of Wards of Court – An Information
Booklet (2003).
[230]
In the
Law Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) (at paragraph 4.18, fn18), the Commission noted the inappropriateness
in modern times of terms such as “lunacy”, “lunatic” and “idiot” which are used
in the Lunacy Regulation (Ireland) Act 1871. In relation to the
need for appropriate labelling see also Commission on the Status of People with
Disabilities A Strategy for Equality: Report of the Commission on the Status
of People with Disabilities at paragraph 2.1; paragraph 1.21 above.
[231]
S.I.
No. 15 of 1986 (as amended).
[232]
Courts
Service Annual Report 2003 (2004) at 89.
[233]
It has
been estimated by the staff of the Office of the Wards of Court that 75-80% of
persons admitted to Wardship have senile dementia or some other mental
infirmity associated with old age: Law Reform Commission Consultation Paper
on Law and the Elderly (LRC CP 23-2003) at paragraph 4.03.
[234]
See Re
Keogh High Court (Finnegan P) 15 October 2002; Dolan v Registrar of
Wards of Court High Court (Kelly J) 19 March 2004 (ex tempore).
[235]
In
relation to wills and discretionary trusts to benefit an adult with an
intellectual disability see: NAMHI Making a Will – What you should know: A
guide for parents and families of people with intellectual disabilities (2003).
[236]
For
example, in order to ensure that a purchaser receives a good, marketable title
where the seller lacks the capacity to consent, making the individual a Ward of
Court allows the Court to authorise the sale.
[237]
See,
for example, In re Application of Midland Health Board [1988] ILRM 251
where a Health Board petitioned for a wardship inquiry in circumstances where
there was a serious risk to the welfare of a 20 year old intellectually
disabled woman in the family home.
[238]
Section 15 of the 1871 Act. See further paragraph 4.17 ff below.
[239]
The
question of who may bring a petition is not addressed in the 1871 Act or the
applicable rules. In practice, where a next of kin is not available or
willing to act, a petition may be presented by a third party, medical
practitioner, hospital authorities or solicitor: Courts Service Office of
Wards of Court – An Information Booklet (2003) at 4.
[240]
A
request for Wardship may be made in the Circuit Court where the person’s
property does not exceed €6,350 or the income from that property does not
exceed €389 per annum: section 22(2) of the Courts (Supplemental
Provisions) Act 1961 (as amended). However, in practice wardship
proceedings are rarely instituted in the Circuit Court.
[241]
For
further detail on the procedure under section 15 of the Lunacy Regulation
(Ireland) Act 1871 and alternative procedural bases see O’Neill Wards of
Court in Ireland (First Law 2004) at Chapter 2; Law Reform Commission Consultation
Paper on Law and the Elderly (LRC CP 23-2003) at paragraph 4.19 ff.
[242]
This
excludes psychologists and psychiatrists. However, on occasion an
affidavit of a medical practitioner will make reference to the opinion of a
consultant psychologist or to psychometric testing.
[243]
In
relation to the test for wardship see further paragraph 4.17 ff below.
[244]
See
O’Neill Wards of Court in Ireland op cit fn21 at paragraph 2.63.
[245]
See
comments of Mr Noel Doherty, Registrar of Wards of Court Wards of Court Continuing
Legal Education Lecture, Law Society (2003) at 42.
[246]
Order
4, rule 8 of the Rules of the Superior Courts 1986 (S.I. No. 15 of
1986).
[247]
See Re
Keogh High Court (Finnegan P) 15 October 2002, discussed at paragraph 4.18
below.
[248]
See
Rickard-Clarke “Elder Abuse – Legal Solutions” paper presented at Irish Women
Lawyers’ Association, Seminar on Law and the Elderly, 2 January 2005 at 4.
[249]
See
O’Neill Wards of Court in Ireland (First Law 2004) at 2.69.
[250]
Ibid
at 2.63.
[251]
[1999]
2 IR 99, 111.
[252]
See Re
Haughey [1971] IR 217.
[253]
See
the comments of Blayney J. in The State (Polymark Ltd) v ITGWU [1987]
ILRM 357 where the Labour Court obtained legal advice on an aspect of a
submission from an employer concerning jurisdiction and carried on with the
case without disclosing the advice obtained to the employer and giving the
employer the opportunity to respond; Hogan and Morgan Administrative Law in
Ireland (3rd ed Round Hall Sweet & Maxwell 1998) at 500 ff.
[254]
(1979-80) 2 EHRR 387 at paragraph 73 (see paragraph 4.29 below); Jones Mental
Health Act Manual (9th ed Sweet & Maxwell 2004) at 797 ff;
Wachenfeld “The Human Rights of the Mentally Ill in Europe” (1991) 60 Nordic
Journal of International Law 109, at 224.
[255]
It
would appear that Article 6(1) covers “not only … the particular process of the
making of the decision but extends more widely to the whole process which leads
up to the final resolution”: R (Alconbury Developments Ltd) v Secretary of
State for the Environment, Transport and the Regions [2001] 2 All ER 929, paragraph 152 per Lord
Clyde.
[256]
Nideröst-Huber
v Switzerland 18990/91 European Court of Human Rights 18 February 1997.
[257]
MS
v Finland 46601/99 European Court of Human Rights 22 March 2005 at
paragraph 32. See also HAL v Finland 38267/97 European Court of
Human Rights 27 January 2004; Rowe v United Kingdom (2000) 30 EHRR 1; Vermeulen v Belgium 19075/91
European Court of Human Rights 20 February 1996.
[258]
See The
State (Rogers) v Galvin [1983] IR 249, 253 where an ex parte order
releasing the defendants from custody provided for in the Rules of the Superior
Court resulted in Henchy J expressing reservations as to whether such a
rule was intra vires the Superior Court Rules Committee.
[259]
(1979-80) 2 EHRR 387, paragraph 60. See also Multiplex v Croatia 58112/00
European Court of Human Rights 10 July 2003.
[260]
(2002) 35 EHRR 38 at paragraph 21.
[261]
Jones Mental
Health Manual (9th ed Sweet & Maxwell 2004) at 798.
[262]
Eastern
Health Board v MK [1999] 2 IR 99 (admission of hearsay evidence). See
further Law Reform Commission Consultation Paper on Law and the Elderly (LRC
CP 23-2003) at paragraph 4.18.
[263]
Law
Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003).
[264]
[1996]
2 IR 79.
[265]
Law Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at paragraph 4.18. See also Tomkin and McAuley “Re A Ward of
Court: Legal Analysis” (1995) 1 MLJI 45.
[266]
Section
15 of the 1871 Act.
[267]
Eastern
Health Board v MK [1999] 2 IR 99; Dolan v Registrar of Wards of Court
High Court (Kelly J) 19 March 2004 (ex tempore).
[268]
In
re Application of Midland Health Board [1988] ILRM 251, 259 per Finlay CJ; Dolan
v Registrar of Wards of Court High Court (Kelly J) 19 March 2004 (ex
tempore).
[269]
High
Court (Finnegan P) 15 October 2002.
[270]
Where
a person lacks capacity to litigate, a “next friend” can be appointed to sue on
their behalf: Order 15, rule 17 of the Rules of the Superior Courts 1986 (S.I.
No. 15 of 1986).
[271]
See
paragraph 4.09 above.
[272]
See
paragraph 4.08 above.
[273]
High
Court (Kelly J) 19 March 2004 (ex tempore). See O’Neill Wards
of Court in Ireland (First Law 2004) at 50-51.
[274]
In
relation to the procedure under section 12 see: Law Reform Commission Consultation
Paper on Law and the Elderly (LRC CP 23-2003) at paragraph 4.28-4.29.
[275]
High
Court (Finnegan P) 15 October 2002.
[276]
See
Courts Service Office of Wards of Court – An Information Booklet (2003)
at 14-15; Law Reform Commission Consultation Paper on Law and the Elderly
(LRC CP 23-2003) at paragraph 4.44 ff.
[277]
O’Neill Wards of Court in Ireland (First Law 2004) at paragraph 7.1.
[278]
Re
a Ward of Court (No.2) [1996] 2 IR 79, 106 per Hamilton CJ.
[279]
Re
a Ward of Court (No.2) [1996] 2 IR 79.
[280]
[1996]
2 IR 79.
[281]
[1996]
2 IR 79, 99. This approach derives from Lord Goff’s opinion in Airedale
NHS Trust v Bland [1993] AC 789.
[282]
See
Donnelly “Decision-making for Mentally Incompetent People: The Empty Formula of
Best Interests?” (2001) 20 Med. Law 405.
[283]
CK
v Northern Area Health Board [2003] 2 IR 544.
[284]
See
paragraph 5.19 below.
[285]
See
paragraph 6.48 below.
[286]
Order
15, rule 17 of the Rules of the Superior Courts 1986 provides for a
person who has been admitted to wardship to institute and defend legal
proceedings by his committee. Proceedings may only commenced by the
Committee with the approval of the Court and any settlement must be approved by
the Court.
[287]
Re
a Ward of Court (No.2) [1996] 2 IR 79. Issues relating to consent to
medical treatment in respect of adults who have been made a Ward of Court are
discussed at paragraph 7.52 ff below.
[288]
See
Courts Service Office of Wards of Court – An Information Booklet (2003)
at 8.
[289]
O’Neill Wards of Court in Ireland (First Law 2004) at 2.91.
[290]
A
procedure for temporary wardship is available under section 103 of the Lunacy
Regulation (Ireland) Act 1871 but in practice this is rarely used.
See further Law Reform Commission Consultation Paper on Law and the Elderly (LRC
CP 23-2003) at paragraph 4.31-4.32.
[291]
Order
67, rule 59 of the Rules of the Superior Courts 1986 (S.I. No. 15 of
1986).
[292]
This
may be open to legal question on the basis of the decision of the European
Court of Human Rights in HL v United Kingdom 45508/99 European
Court of Human Rights 5 October 2004. See Hewitt “Effective, unqualified
control” (2004) 154 NLJ 1553; paragraph 4.30 below.
[293]
See Croke
v Ireland Application No 3326/96 concerning the application of Article 5(4)
of the ECHR to a person’s involuntary psychiatric detention under section 172
of the Mental Health Act 1945 and the lack of an automatic and
independent review of that continuing detention (friendly settlement reached); O’Reilly
v Ireland Application No. 24196/94 concerning the arbitrary deprivation of
liberty under Article 5(1)(e) of the ECHR (friendly settlement reached).
See Byrne and McCutcheon The Irish Legal System (4th ed
Butterworths) at paragraph 17.54.
[294]
See
O’Neill Wards of Court in Ireland (First Law 2004) at 1.50.
[295]
(1979-1980) 2 EHRR 387 at paragraph 55.
[296]
Winterwerp
v The Netherlands (1979-1980) 2 EHRR 387 at paragraph 39.
[297]
See,
for example, Megyeri v Germany (1993) EHRR 584.
[298]
European Court of Human Rights 5 October 2004.
[299]
European Court of Human Rights 5 October 2004 at paragraph 120.
[300]
Order
67, rule 93 of the Rules of the Superior Courts 1986. See O’Neill Wards
of Court in Ireland (First Law 2004) at 180-183.
[301]
See
O’Neill Wards of Court in Ireland op cit fn80 at 6.19 ff.
[302]
(2001) 31 EHRR 32, paragraph 51. See
also X v United Kingdom (1981) 4 EHRR 188.
[303]
(1979-1980) 2 EHRR 387. See paragraph 4.29
above.
[304]
[2004]
EWCA Civ 1609. See Hewitt “Incapacity and the Right to Liberty”
(2005) NLJ 26.
[305]
Report
of the Commission of Inquiry on Mental Handicap (1965) (the Stationery
Office) (Pr 8234) at paragraph 206 ff. See also Commission on the
Status of People with Disabilities A Strategy for Equality: Report of the
Commission on the Status of People with Disabilities (1996) at paragraph
2.2.
[306]
[1987]
IR 449, 457.
[307]
Law
Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003).
[308]
Ibid
at paragraph 6.01.
[309]
In the
Consultation Paper on Law and the Elderly (LRC CP 23-2003) at 2,
consideration of a new system was limited to the elderly but it was
acknowledged that “the law in this area has created a common shelter under
which many citizens may take refuge.” See further Consultation Paper
on Law and the Elderly (LRC CP 23-2003) at paragraph 6.50 ff.
[310]
This
implemented the recommendations in Law Reform Commission Report on Land Law
and Conveyancing Law (2) Enduring Powers of Attorney (LRC 21-1989).
See also the Enduring Powers of Attorney Regulations 1996 (S.I. No. 196
of 1996), the Enduring Powers of Attorney (Personal Care Decisions)
Regulations (S.I. No. 287 of 1996) and Law Society of Ireland Enduring
Powers of Attorney – Guidelines for Solicitors (2004). See further
Gallagher Powers of Attorney Act 1996 (Round Hall Sweet & Maxwell
1998); Law Reform Commission Consultation Paper on Law and the Elderly
(LRC CP 23-2003) at Chapter 3, O’Neill Wards of Court in Ireland (First
Law 2004) at Chapter 8.
[311]
Excluded individuals listed in section 5(4) of the Powers of Attorney Act
1996 include a person who has been made bankrupt, a person who has been
convicted of an offence involving fraud or dishonesty, and the owner of a
nursing home where the donor resides.
[312]
Section 5(1) of the Powers of Attorney Act 1996.
[313]
See
the first and second schedules to the Enduring Powers of Attorney Regulations
1996 (SI No 196 of 1996).
[314]
Section 9 of the Powers of Attorney Act 1996.
[315]
99
EPAs were registered in 2003: Courts Service Annual Report 2003 (2004)
at 89.
[316]
An
ordinary power of attorney automatically terminates when the donor of the power
loses capacity to handle their affairs: Yonge v Toynbee [1910] 1 KB 215.
[317]
Costello “The Enduring Problem of Powers of Attorney” (1998) CPLJ 35 at 42.
[318]
See
Pearce and O’Donnell “An Overview of the Law Relating to Powers of Attorney and
an Analysis of the Practical Implications of the Powers of Attorney Act 1996
for Conveyancers” (1996) 1 CPLJ 41 at 42.
[319]
S.I.
No. 196 of 1996 (amended by the Enduring Powers of Attorney (Personal Care Decisions)
Regulations 1996 (S.I. No. 287 of 1996)).
[320]
This accords with In
re K (Enduring Powers of Attorney), In re F [1988] Ch 310 where Hoffman J
held that the test was not whether the donor would be able to exercise the
powers herself but rather whether she understood the nature and effect of the
powers being conferred under the EPA. See Law Reform Commission Consultation
Paper on Law and the Elderly (LRC CP 23-2003) at paragraph 1.11-1.12.
[321]
See Costello “The
Enduring Problem of Powers of Attorney” (1998) 1 CPLJ 35.
[322]
[1988] Ch 310.
[323]
Under section 6(6) of the Powers of Attorney Act 1996 personal care
decisions are decisions relating to one or more of the following: where and
with whom the donor should live, the persons the donor should see, training and
rehabilitation, diet and dress, inspection of donor’s personal papers, housing,
social welfare and other benefits. The Commission recommended that the
scope of welfare powers be widened to include authority to make decisions on
medical treatment: Law Reform Commission Consultation Paper on Law and the
Elderly (CP 23-2003) at paragraph 3.13 ff.
[324]
Section 6 of the Powers
of Attorney Act 1996.
[325]
Section 6(7)(b) of
the Powers of Attorney Act 1996.
[326]
There is no
requirement to take such factors into account in respect of financial
decisions.
[327]
Law Reform
Commission Consultation Paper on Law and the Elderly (LRC CP 23-2003).
[328]
Ibid at
paragraph 3.25.
[329]
Law Society of
Ireland Enduring Powers of Attorney – Guidelines for Solicitors (2004)
at paragraph 1.10.
[330]
Sections 11(1)(a)
and 12(3) of the Powers of Attorney Act 1996.
[331]
Law Reform
Commission Consultation Paper on Law and the Elderly op cit fn107.
[332]
Ibid at
paragraph 6.01.
[333]
The label “of
unsound mind” which features in the Mental Treatment Act 1945 was not
used in the Mental Health Act 2001.
[334]
See paragraph 1.20
ff above.
[335]
See Winterwerp
v The Netherlands (1980) EHRR 387; HM v Switzerland (2004) 38 EHRR 17; HL v United Kingdom 45508/99
European Court of Human Rights 5 October 2004.
[336]
High Court
(Finnegan P) 15 October 2002.
[337]
High Court (Kelly
J) 19 March 2004 (ex tempore).
[338]
While temporary
wardship is possible under section 103 of the 1871 Act, this is rarely
used. See Law Reform Commission Consultation Paper on Law and the
Elderly (LRC CP 23-2003) at paragraph 4.31– 4.32.
[339]
Recommendation
no. R(99)4 of the Committee of Ministers to Member States on Principles
Concerning the Legal Protection of Vulnerable Adults (adopted 23 February
1999). See further paragraphs 1.37-1.39 above.
[340]
Law Reform Consultation
Paper on Law and the Elderly (LRC CP 23-2003).
[341]
Law Reform Consultation
Paper on Law and the Elderly (LRC CP 23-2003).
[342]
Ibid at
paragraph 6.01.
[343]
In New Zealand,
under the Protection of Personal and Property Rights Act 1988, a
separate enduring power of attorney may be created in respect of property and
personal care and welfare decisions.
[344]
Department for
Constitutional Affairs Government Response to the Scrutiny Committee’s
Report on the Draft Mental Incapacity Bill (2004), Recommendation 48.
[345]
See paragraph 2.40
above.
[346]
See Chapter 1 above at Part B.
[347]
See generally Clark Contract Law in Ireland (5th ed Round
Hall Thomson 2004) at Chapter 16; Friel The Law of Contract (2nd
ed Round Hall Sweet & Maxwell 2000) at Chapter 5; Mc Dermott Contract
Law (Butterworths (Ireland) Ltd 2001) at Chapter 17; Furmston Cheshire,
Fifoot & Furmston’s Law of Contract (14th ed
Butterworths Lexis Nexis 2001) at Chapter 13; British Medical Association and
The Law Society Assessment of Mental Capacity: Guidance for Doctors and
Lawyers (1st ed 1995) at Chapter 7; Law Commission Mentally
Incapacitated Adults and Decision-Making: An Overview (Consultation Paper
No 119 1991) at paragraph 2.16; Law Commission Report on Mental Incapacity (Law
Com No 231 1995) at paragraph 4.8 ff.
[348]
See, for example, Quinn and Degener Human Rights and Disability (United
Nations HR/PUB/02/01 2002) at 10-11.
[349]
The law relating to capacity to make a gift is considered in the Law Reform
Commission Consultation Paper on Law and the Elderly (LRC CP 23-2003) at
paragraph 1.07.
[351]
[1995] 2 ILRM 601, 615.
[352]
See the comments of the Australian Law Reform Commission in its report on Guardianship
and Management of Property (Report No 52 1989) at paragraph 4.71.
[353]
See Green, “Public Policies Underlying the Law of Mental Incompetency” (1940)
38(8) Mich L.R. 1189.
[354]
See paragraph 5.09 - 5.12 below.
[355]
See
paragraph 2.27 above.
[356]
See
Part C below.
[357]
Law
Commission Mentally Incapacitated Adults and Decision-Making: An Overview (Consultation
Paper No. 119 1991) at paragraph 2.16.
[358]
See
Law Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at paragraph 5.28 ff; O’ Siodhachain v O’Mahony High
Court (Kearns J) 31 October 2002.
[359]
A
non-exhaustive list of relevant Irish consumer protection legislation includes
the Sale of Goods Act 1893; the Consumer Information Act 1978;
the Sale of Goods and Supply of Services Act 1980; the European
Communities (Misleading Advertising) Regulations 1988 (SI No 134 of 1988);
the European Communities (Cancellation of Contracts Negotiated away from
Business Premises) Regulations 1989 (SI No 224 of 1989); the Liability
for Defective Products Act 1991 (and associated regulations); the European
Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (SI No 27
of 1995); the Consumer Credit Act 1995 (and associated regulations); the
European Communities (Unfair Terms in Consumer Contracts) (Amendment)
Regulations 2000 (SI No 307 of 2000); the European Communities
(Protection of Consumers in Respect of Contracts Made by Means of Distance
Communications) Regulations 2001 (SI No 207 of 2001); the European
Communities (Certain Aspects of the Sale of Consumer Goods and Associated
Guarantees) Regulations 2003 (SI No 11 of 2003); the European Communities
Directive 2000/31 EC Regulations 2003 (SI No 68 of 2003); the European
Communities (Distance Marketing of Consumer Financial Services) Regulations
2004 (SI No 853 of 2004); and the European Communities (Protection of
Consumers in Respect of Contracts Made by Means of Distance Communication
(Amendment) Regulations 2005 (SI No 71 of 2005). On 18 June 2003 the
European Commission adopted a proposal for a Directive on unfair
business-to-consumer practices which makes specific reference to vulnerable
consumers:
http://europa.eu.int/comm/consumers/cons_int/safe_shop/fair_bus_pract/directive_prop_en.pdf.
[360]
See
Consumer Strategy Group Report on Consumer Policy (Government
Publications 2005).
[361]
IFSRA
is developing codes of conduct for providers of financial services which will
ensure a standard of protection for consumers: Irish Financial Services
Regulatory Authority Consumer Protection Code (Consultation Paper CP10
February 2005).
[362]
See
paragraph 5.30 below.
[363]
Boughton
v Knight (1873) LR 3 PD 64 at 72. However, the absence of capacity is
not in itself sufficient to prevent a contract being enforceable: see paragraph
5.09 ff below.
[364]
Re Beaney [1978] 2 All ER 595.
[365]
Jenkins
v Morris (1880) 14 Ch D 674.
[366]
Hall
v Warren (1804) 9 Ves. Jun. 605.
[367]
Faber
v Sweet Style Manufacturing Corp. 40 Misc 2d 212, 216 (1969). This
case concerned extravagant contracts entered into by a man during the manic
phase of bipolar affective disorder. See also Note “Manic-Depressive Held
Incompetent to Contract Despite Apparent Ability to Understand Transaction”
(1964) 39 NYUL Rev. 356.
[368]
See Saunders
v Anglia Building Society [1971] AC 1004, 1025 per Lord
Wilberforce.
[369]
See
New South Wales case of PT Ltd v Maradona Pty Ltd (1992) 25 NSWLR 643 at
673-675.
[370]
Beverley’s
Case (1603) Cro. Eliz. 398.
[371]
Molton
v Camroux (1848) 2 Exch 487; affirmed (1849) 4 Exch 17. In Scotland,
the law followed the Roman law approach of looking at whether the person at the
time the contract was entered into had capacity to understand and transact the
business in question. If so, the contract was binding. If not, the
contract was null and void and the loss lay where it fell: Loudin
& Co v Hunter [1923] Ll. L. Rep. 500.
[372]
[1892]
1 QB 599.
[373]
[1892]
1 QB 599, 601.
[374]
(1872)
Ir. 6 Eq 429.
[375]
See
also York Glass Co v Jubb (1925) 134 LT 36.
[376]
[2000]
WASC 29.
[377]
Matthew
v Baxter (1873) LR 8 Ex. 132.
[378]
An
executory contract refers to a contract where the obligations under it have not
been carried out.
[379]
An
executed contract refers to a contract where the obligations under it have been
carried out.
[380]
Imperial
Loan Co v Stone [1892] 1 QB 599 discussed at paragraph 5.10 ff
above.
[381]
American Law Institute Restatement of the Law Second Contract 2d Volume
1 (1981). The American Law Institute is an association of academic
lawyers, legal practitioners and members of the judiciary. The aim of its
Restatement (Second) of Contracts is to set out a coherent and
accessible statement of principles based on a review and, where required, a
re-working of existing law. The Restatement does not carry the force of
law but would be referred to in the courts as persuasive authority. By
contrast, the Commission of European Contract Law’s Principles of European
Contract Law (2000), which sets out general rules in the area of contract
law akin to the American Restatement of the Law of Contract, did not cover
capacity on the basis that rules on capacity were considered to be more a
matter of the law of persons than of contract proper (at 227).
[382]
Section 15(2) of the American Law Institute Restatement of the Law Second 2d
Volume 1 (1981).
[383]
Law
Reform Commission Report on Minors’ Contracts (LRC 15-1985). The
recommendations made in this Report have not been implemented to date.
[384]
Law
Reform Commission Report on Minors’ Contracts (LRC 15-1985) at
108. The restitutionary principle was expressed to apply to both
concluded transactions and to those which had not yet been concluded: ibid at
113.
[385]
Law
Reform Commission Report on Minors’ Contracts (LRC 15-1985) at
109 – 110.
[386]
[1985] 2 All ER 880. See also Irvani
v Irvani [2000] 1 Lloyd’s Rep 412.
[387]
[1892]
1 QB 599 discussed at paragraph 5.10 ff above.
[388]
The
Privy Council in Hart v O’Connor [1985] 2 All ER 880 overturned the decision
in the New Zealand case of Archer v Cutler [1980] 1 NZLR 386 to the
effect that where a contract is substantively unfair, a lack of capacity could
be successfully invoked against a party who was not aware of it.
[389]
See
Law Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at paragraph 5.28 ff.
[390]
Elliot
v Ince (1857) 7 De G M & G 475.
[391]
Drew
v Nunn (1879) 4 QBD 661, 666, per Brett LJ. Yonge v
Toynbee [1910] 1 KB 215. However, there may be an agency by estoppel
or holding out where a third party deals with the agent without the knowledge
of the principal’s loss of capacity: Drew v Nunn (1879) 4 QBD, 661,
667-669. See Halsbury’s Laws of England (Fourth Ed Reissue)
Volume 30 at paragraph 1395.
[392]
See
generally Chapter 4 above; Law Reform Commission Consultation Paper on Law
and the Elderly (LRC CP 23-2003), Chapter 3.
[393]
See
generally Chapter 4 above; Law Reform Commission Consultation Paper on Law
and the Elderly (LRC CP 23-2003) at Chapter 4.
[394]
Re
Walker [1905] 1 Ch 160. See also the Australian case of Re Barnes [1983]
1 VR 605.
[395]
Law
Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at Chapter 6.
[396]
It
would appear that this is the position irrespective of whether the supplier was
aware of the person’s incapacity at the time of the putative contract.
[397]
Although the quasi-contractual liability in relation to the supply of
necessaries contained in section 2 of the Sale of Goods Act 1893 is only
expressed to cover the sale of goods, the same principles apply at common law
in relation to the supply of essential services.
[398]
See,
for example, Pickering v Gunn Palm 528, 82 ER 96 (1928).
[399]
Nash
v Inman [1908] 2 KB 1.
[400]
Clyde
Cycle Co v Hargreaves 78 LT 296 (1898).
[401]
Re
Rhodes (1890) 44 Ch D 94.
[402]
Dale
v Copping 1 Bulst 39, 80 ER 743 (1610), Huggins v Wiseman Carth.
110, 90 ER 699 (1690).
[403]
For a
discussion of the case-law see Law Reform Commission Report on Minors’ Contracts
(LRC 15-1985) at Chapter 2.
[404]
“Articles of mere luxury are always excluded, though luxurious articles of
utility are in some cases allowed.” Cowern v Nield [1912] 2 KB 419, 422.
[405]
Law
Reform Commission Report on Minors’ Contracts (LRC 15-1985) at 116.
[406]
See
the comments of Craig J of the Supreme Court of British Columbia in First
Charter Financial Corp. Ltd. v Musclow 49 DLR (3d) (1974) 138, 142-143.
[407]
See
paragraph 5.17 above.
[408]
Re
Rhodes (1890) 44 Ch D 94.
[409]
See
Goff and Jones The Law of Restitution (6th ed London Sweet & Maxwell
2002) at 629.
[410]
Nash
v Inman [1908] 2 KB 1. Furthermore, it would appear that the goods
must be necessaries both at the time the contract is made and at the
time of delivery.
[411]
Barnes
& Co v Toye (1884) 13 QBD 410; Johnstone v Marks (1887) 19 QBD
509; Nash v Inman [1908] 2 KB 1.
[412]
Scottish Law Commission Mentally Disabled Adults: Legal Arrangements for
Managing their Welfare and Finances (Discussion Paper No 94 1991) at
paragraph 7.17.
[413]
Ibid
at paragraph 7.17. This issue was not addressed in the Adults with
Incapacity (Scotland) Act 2000.
[414]
Law
Commission Mental Incapacity (Law Com No 231) (1995).
[415]
Ibid
at paragraph 4.9.
[416]
Department of Constitutional Affairs Explanatory Notes to Mental Capacity
Bill (17 June 2004) at paragraph 37.
[417]
See
Part E above.
[418]
Section 27 of the Equal Status Act 2000.
[419]
Section 27 of the Equal Status Act 2000.
[420]
Section 28 of the Equal Status Act 2000. This section also
provides for an appeal on point of law to the High Court.
[421]
28
January 2003 (Swindon County Court).
[422]
See
paragraph 5.01 above.
[423]
[1985] 2 All ER 880. See paragraph
5.17 above.
[424]
See
Chapters 2 and 3 above.
[425]
See
paragraph 5.41 ff below.
[426]
The
law on unconscionable bargain and undue influence received some consideration
in the Law Reform Commission’s Consultation Paper on Law and the Elderly (LRC
CP 23-2003) at paragraph 5.28ff and may receive further consideration in
the Law Reform Commission’s final report on Vulnerable Adults and the Law
(as to which see the Introduction to this Consultation Paper).
[427]
Law
Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003).
[428]
Ibid
at Chapter 6.
[429]
Ibid
at Chapter 6.
[430]
This is designed to prevent an argument that an individual does not have the
capacity to make the complaint. See the similarly broad definition of
“complainant” under section 20 of the Equal Status Act 2000 (as amended
by section 53 of the Equality Act 2004). See paragraph 5.31 above.
[431]
This
approach echoes section 15 of the American Law Institute’s Restatement
(Second) of Contracts (see paragraph 5.14 above) and some aspects of the
recommendations of the Law Reform Commission in relation to minors’ contracts
(see paragraph 5.15-5.16 above).
[432]
See,
for example, sections 15 and 16 of the Civil Liability and Courts Act 2004.
[433]
Council of Europe Committee of Ministers Recommendation No. R99(4) on
Principles Concerning the Legal Protection of Vulnerable Adults (23
February 1999), Principle 3(4). See further paragraphs 1.37-1.39 above.
[434]
See paragraph 1.04 above.
[435]
See paragraph 1.32 ff above.
[436]
[1996] 2 IR 73, 126 per Hamilton
CJ.
[437]
McGee
v Attorney General [1974] IR 284; Kennedy v Ireland
[1987] IR 587; Hanahoe v Hussey [1998] 3 IR 69.
[438]
Re
a Ward of Court (No.2) [1995] 2 ILRM 401.
[439]
Ryan
v Attorney General [1965] IR 294; Murray v Ireland [1985]
IR 532 [1991] ILRM 465.
[440]
[1987] IR 587.
[441]
[1987] IR 587, 592.
[442]
Norris
v Attorney General [1984] IR 36; Kennedy v Ireland [1987]
IR 587; Foy v an t-Ard Chláraitheoir High Court (McKechnie J) 9 July
2002; Bailey v Flood Supreme Court 14 April 2000.
[443]
Kennedy
v Ireland [1987] IR 587, 592, per Hamilton P.
[444]
Foy
v An t-Ard Chláraitheoir High Court (McKechnie J) 9 July 2002.
[445]
[1985]
IR 532. See also the Supreme Court [1991] ILRM 465.
[446]
See
paragraph 1.34 ff above.
[447]
The Commission ceased to exist on the coming into effect of Protocol No.11 to
the ECHR in 1998.
[448]
This
describes the amount of latitude given to national authorities in the
application of the European Convention on Human Rights. See Lavender “The
Problem of the Margin of Appreciation” [1997] EHRLR 380.
[449]
See Dudgeon
v United Kingdom (1982) 4 EHRR 149; Norris v Ireland
(1989) EHRR 186; Sutherland v UK [1998] EHRLR 117.
[450]
See
also Article 7 of the Charter of Fundamental Rights for the European Union OJ
NO. 364/1 (2000). See paragraph 1.45 above.
[451]
(1977)
EHRR 244.
[452]
(1977) 3 EHRR 244 at paragraph 55.
[453]
See
also Article 9 of the Charter of Fundamental Rights for the European Union OJ
NO. 364/1 (2000). See paragraph 1.45 above.
[454]
(1982)
4 EHRR 139.
[455]
(1982)
4 EHRR 139 at paragraphs 60 – 62. See further McDermott Prison
Law (Round Hall Sweet & Maxwell 2000) at 10.04.
[456]
See
McAuley and McCutcheon Criminal Liability (Round Hall Sweet &
Maxwell Dublin 2000) at 513 ff.
[457]
See
section 2 of the Criminal Law (Rape) (Amendment) Act, 1990. The
maximum penalty is imprisonment for 10 years.
[458]
See
section 3 of the Criminal Law (Rape) (Amendment) Act, 1990. The
maximum penalty is imprisonment for life.
[459]
Rape
carries a maximum sentence of life imprisonment. For the ingredients of
rape offences see section 2 of the Criminal Law (Rape) (Amendment) Act 1981 (as
amended) and section 4 of the Criminal Law (Rape) (Amendment) Act 1990;
O’Malley Sexual Offences: Law, Policy and Punishment (Round Hall Sweet
& Maxwell 1996) at Chapter 2; Charleton, McDermott and Bolger Criminal
Law (Butterworths 1999) at Chapter 8.
[460]
The
common law test is that expounded by the Supreme Court of Victoria in R v
Morgan [1970] VR 337. See further Charleton, McDermott and Bolger Criminal
Law (Butterworths 1999) at paragraph 8.23.
[461]
(1877)
2 QBD 410.
[462]
On
fraud as to purpose see generally McAuley and McCutcheon Criminal Liability (Round
Hall Sweet & Maxwell 2000) at 523 – 526.
[463]
This
section was repealed by section 14 of the Criminal Law (Sexual Offences) Act
1993 with effect from 7 July 1993. See paragraph 6.16 ff
below.
[464]
These
offensive terms were statutorily defined in the Mental Deficiency Act 1913.
[465]
Section 254 of the Mental Treatment Act 1945 was to be repealed by
section 7 of the Health (Mental Services) Act 1981 (the “1981 Act”).
However, the 1981 Act was not commenced and is to be repealed in its
entirety by section 6 of the Mental Health Act 2001 (when
commenced). In any event section 254 of the 1945 Act has been rendered
nugatory since the repeal of section 4 of the Criminal Law Amendment Act
1935 by the Criminal Law (Sexual Offences) Act 1993. Section
254 will be repealed by section 6 of the Mental Health Act 2001 on the
commencement of that section.
[466]
Law Reform Commission Report on Sexual Offences Against the Mentally
Handicapped (LRC 33-1990).
[467]
Law
Reform Commission Consultation Paper on Rape (1987).
[468]
Law
Reform Commission Report on Rape and Allied Offences (LRC 24-1988).
[469]
Consultation
Paper on Rape at 23, paragraph 39, at 81, paragraph 126. In relation
to the deficiencies of section 4 of the Criminal Law Amendment Act 1935 see
further Charleton, McDermott and Bolger Criminal Law (Butterworths 1999)
at paragraph 8.24.
[470]
See
paragraph 6.12 above.
[471]
Law
Reform Commission Report on Rape and Allied Offences (LRC 24-1988) at
paragraph 51. See also Law Reform Commission Consultation Paper on
Rape (1987) at 82, paragraph 126.
[472]
See
paragraph 1.06 above.
[473]
Law
Reform Commission Report on Sexual Offences Against the Mentally Handicapped
(LRC 33-1990).
[474]
Ibid
at paragraph 27.
[475]
Ibid
at paragraph 18.
[476]
Ibid
at paragraph 18.
[477]
Ibid
at paragraph 32.
[478]
Law
Reform Commission Report on Sexual Offences Against the Mentally Handicapped
(LRC 33-1990) at paragraph 33. The question of how such acts should
be described was not addressed in the Report.
[479]
Law
Reform Commission Report on Sexual Offences Against the Mentally Handicapped
(LRC 33-1990) at paragraph 35. A similar perspective is evident in
Australia’s Model Criminal Code Officers Committee of Attorneys-General Report
on Sexual Offences Against the Person (1999) at 177.
[480]
(LRC
33-1990).
[481]
See
paragraph 6.12 above.
[482]
Sexual
intercourse or buggery. Other acts of a sexual nature are not covered by
this offence: see Department of Justice, Equality and Law Reform The Law on
Sexual Offences (Discussion Paper 1998) (The Stationery Office) at
paragraph 9.3.3.
[483]
Section 5 of the Criminal Law (Sexual Offences) Act 1993. The
maximum penalty for sexual intercourse of buggery within section 5 of the 1993
Act is 10 years’ imprisonment. Attempted intercourse or buggery attract a
maximum penalty of 3 years’ imprisonment for a first offence and 5 years’
imprisonment for subsequent offences. See further O’Malley Sexual
Offences: Law, Policy and Punishment (Round Hall Sweet & Maxwell 1996),
Chapter 6.
[484]
Section 5(2) of the Criminal Law (Sexual Offences) Act 1993.
[485]
Section 5(3) of the Criminal Law (Sexual Offences) Act 1993. The
definition of mental impairment is based on a similar definition in section 96
of the Mental Health (Scotland) Act 1960. See further Law Reform
Commission Report on Sexual Offences Against the Mentally Handicapped (LRC
33-1990) at paragraphs 24 and 31.
[486]
It
would appear that the tests contained in this definition are disjunctive or
alternative - the person must be incapable of leading an independent life or
incapable of guarding against serious exploitation: Department of Justice,
Equality and Law Reform The Law on Sexual Offences (Discussion Paper The
Stationery Office 1998) at 9.3.2.
[487]
Section 5(5) of the Criminal Law (Sexual Offences) Act 1993. Part
IV of the Sex Offenders Act 2001 utilises the definition of “mentally
impaired” in section 5 of the Criminal Law (Sexual Offences) Act 1993.
[488]
Section 5(4) of the Criminal Law (Sexual Offences) Act 1993. See further
Director of Public Prosecutions Statement of General Guidelines for
Prosecutors (2001) at 9-16.
[489]
Department of Justice, Equality and Law Reform The Law on Sexual Offences
(Discussion Paper) (The Stationery Office 1998).
[490]
Ibid
at paragraph 9.4.1.
[491]
(1988)
86 Cr App R 159.
[492]
See
paragraphs 1.22 and 3.16 ff above.
[493]
See
Law Reform Commission Report on Sexual Offences Against the Mentally
Handicapped (LRC 33-1990).
[494]
Ibid
at paragraph 32. This view is approved in the NAMHI publication Who
Decides and How? People with Intellectual Disabilities – Legal Capacity and
Decision Making (2003) at 65.
[495]
See
McAuley and McCutcheon Criminal Liability (Round Hall Sweet &
Maxwell Dublin 2000) at 515.
[496]
See
paragraph 6.15 above.
[497]
O’Malley Sexual Offences: Law Policy and Punishment (Round Hall Sweet
& Maxwell 1996) at 133.
[498]
(LRC
33-1990).
[499]
Gunn Medical
Law (1986) 255 at 257. Quoted in Law Reform Commission Report on
Sexual Offences Against the Mentally Handicapped (LRC 33-1990) at paragraph
12.
[500]
See
paragraph 6.07 above.
[501]
See Dudgeon
v UK (1981) 4 EHRR 149; Norris v Ireland (1991) 13 EHRR 186; Modinos v Cyprus (1993) 16 EHRR 485. In Ireland, the
blanket prohibition on buggery was removed by section 2 of the Criminal Law
(Sexual Offences) Act 1993.
[502]
The
Model Criminal Code Officers Committee of the Standing Committee of
Attorneys-General Report on Sexual Offences Against the Person (May
1999) at 177.
[503]
Section 30 of the UK Sexual Offences Act 2003.
[504]
This
protective function is buttressed by Part 4 of the Sex Offenders Act 2001
which requires anyone who applies to do work involving unsupervised access to
“mentally impaired” persons (as defined in section 3 of the Criminal Law
(Sexual Offences) Act 1993) to inform the employer of any previous
conviction for a sexual offence.
[505]
See
paragraph 6.16 ff above.
[506]
Commission on the Status of People with Disabilities A Strategy for
Equality: Report of the Commission on the Status of People with Disabilities
(1996) at paragraph 2.2.
[507]
See
paragraph 6.23 above.
[508]
The
Department of Justice, Equality and Law Reform’s Discussion Paper The Law on
Sexual Offences (The Stationery Office
1998) raised the issue as to whether the perpetrator of a sexual assault
offence by a carer in an institution should attract a higher maximum penalty
(at paragraph 9.5.2). This was a recommendation of the Commission in the Report
on Sexual Offences Against the Mentally Handicapped (LRC 33-1990) at
paragraph 36.
[509]
(1866)
L.R. 1 P&D 130.
[510]
(1866)
L.R. 1 P&D 130, 133. The permanency characteristic has been watered
down as a result of the divorce referendum which led to the amendment of
Article 41.3.2 and provision for divorce pursuant to in the Family Law
(Divorce) Act 1996.
[511]
See
generally Shannon (ed) Family Law Practitioner (Round Hall Sweet &
Maxwell loose-leaf) at Division A.
[512]
N
(orse K) v K [1986] ILRM 75, 89 per Griffin J.
[513]
Ryan
v Attorney General [1965] IR 294. See also Donovan v
Minister for Justice (1951) 85 ILTR 134.
[514]
Foy
v An t-Ard Chláraitheoir High Court (McKechnie J) 9 July 2002.
[515]
This Part is concerned only with issues relating to capacity to marry which
arise from the existence of a decision-making disability on the part of one or
more of the parties.
[516]
An
exemption to the age requirement may be granted on application to the Circuit
Family Court pursuant to section 33 of the Family Law Act 1995.
[517]
Sheffield
City Council v E [2004] EWHC 2808 (Fam).
[518]
See
Law Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at paragraph 6.60.
[519]
See
paragraph 6.48 below.
[520]
(1885)
10 P.D. 80 at 82. See also Sheffield City Council v E [2005]
All ER (D) 192 (Jan) at paragraph 132.
[521]
[1953]
2 All ER 1411.
[522]
See
also the decision of the Ontario Supreme Court in Re McElroy (1978) 93
D.L.R. (3d) 522 at 525.
[524]
[2004]
EWHC 2808 (Fam) at paragraph 67.
[525]
[2004]
EWHC 2808 (Fam) at paragraph 132.
[526]
[2004]
EWHC 2808 (Fam) at paragraph 144.
[527]
[2004]
EWHC 2808 (Fam) at paragraph 85.
[529]
7
& 8 Vic., C.81. See Shannon (ed) Family Law Practitioner (Round
Hall Sweet & Maxwell 2000) at paragraph A-106.
[530]
If
there is any doubt in relation to the matter, the Registrar can refer the
matter to an t-Ard Chláraitheoir for determination: section 23 of the Marriages
(Ireland) Act 1844.
[531]
Section 58 of the Civil Registration Act 2004 has not been commenced at the
time of writing.
[532]
See
paragraph 6.48 below in relation to the procedure where an objection is based
on the Marriage of Lunatics Act 1811.
[533]
The jurisdiction was transferred from the ecclesiastical courts of the Church
of Ireland to the civil courts by the Matrimonial Causes and Marriage Law
(Ireland) Amendment Act 1870. See Law Reform Commission Report on
the Nullity of Marriage (LRC 9-1984) at 3.
[534]
Alternatively,
under the Family Law (Divorce) Act 1996 divorce is available on a “no
fault basis” where the parties having been living apart for four out of the
previous five years.
[535]
JS v CS [1997] 2 IR 506.
[536]
This also means
that any children will be non-marital children and ancillary reliefs in
relation to property and maintenance will not be available as they would be in
the case of a decree of judicial separation or divorce.
[537]
McG v F [2001] 2 ILRM 326.
[538]
S.C. v P.D. High
Court (McCracken J) 14 March 1996. Earlier cases had suggested that a
more onerous burden of proof might apply. In O’R v B [1995] 2 ILRM
57, 75 Kinlen J stated that in cases where a nullity application is not
contested “[i]t would be eminently desirable at public expense to have a ‘legitimus
contradictor’, an ‘amicus curiae’ or ‘devil’s advocate’ to argue in
favour of the existence of the marriage.”
[539]
[1987] ILRM 58.
[541]
[1997] 2 IR 506, 509.
[542]
Order 70, r.32(2),
32(3) of the Rules of the Superior Courts 1986 (S.I. No. 15 of 1986).
[543]
FP v SP
(Medical Examiner: Discovery) [2002] 4 IR 280.
[545]
[2001] 2 ILRM 326, 334.
[546]
[1987] IR 147.
[547]
High Court (Lavan
J) 10 December 1997.
[548]
[1982] ILRM 263.
[549]
[1982] ILRM 263,
264.
[550]
[1984] ILRM 173.
[551]
[1984] ILRM 173,
189. This reasoning was expressly approved by the Supreme Court in F v
C [1991] 2 IR 352.
[552]
Where a marriage
is voidable it may be subject to approbation by the other party if they act in
a manner which accepts the validity of the marriage: M O’D v C O’D High
Court (O’Hanlon J) 5 August 1992.
[553]
UF v JC
[1991] ILRM 65 (Supreme Court endorsing previous High Court decisions).
[554]
SC v PD High
Court (McCracken J) 14 March 1996.
[555]
SC v PD High
Court (McCracken J) 14 March 1996.
[556]
[1984] ILRM 173.
[557]
PC v VC [1990]
2 IR 91.
[558]
EP v MC [1985]
ILRM 34; PC v DO’B High Court (Carroll J) 2 October 1985.
[559]
[1991] ILRM 65.
[560]
[1991] ILRM 65,
93.
[561]
[1991] ILRM 65,
92.
[562]
[1990] 2 IR
91.
[563]
Shannon (ed) Family
Law Practitioner (Round Hall Sweet & Maxwell 2000) at paragraph
A-241.
[564]
High Court
(O’Higgins J) 25 February 1998.
[565]
It was repealed in
the UK by the Mental Health Act 1959.
[566]
See McLoughlin “Wardship: A Legal and Medical Perspective” (1998) MLJI 61.
[567]
See McLoughlin
“Wardship: A Legal and Medical Perspective” (1998) MLJI 61 at 62.
[568]
At the time of
writing section 58 of the Civil Registration Act 2004 has not been
commenced.
[569]
Turner v Myers (1808)
1 Hag. Con. 414.
[570]
See Hamer v UK (1982)
4 EHRR 139; paragraph 6.08 above.
[571]
An alternative
course of action in long term care facilities may be the administering of
sex-drive suppressants and contraceptives to adults with an intellectual
disability without their knowledge or consent: Report of the Commission on the
Status of People with Disabilities A Strategy for Equality: Report of the
Commission on the Status of People with Disabilities (1996) at paragraph 18.29;
paragraph 7.77 below.
[572]
See Commission on
the Status of People with Disabilities A Strategy for Equality: Report of
the Commission on the Status of People with Disabilities (1996) at
paragraph 18.27 ff. See Cooney “Sterilisation and the Mentally
Handicapped” (1989) 11 DULJ 56; Donnelly, “Non-consensual sterilisation of
mentally disabled people: the law in Ireland” (1997) 32 Irish Jur 297; Freeman
“Sterilising the Mentally Handicapped” in Freeman Medicine, Ethics and the
Law at 55-84. In relation to consent to medical treatment generally
see Chapter 7 below.
[573]
Commission on the
Status of People with Disabilities A Strategy for Equality: Report of the
Commission on the Status People with Disabilities (1996) at paragraph
18.27.
[574]
See generally Law
Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at paragraph 4.04 ff.
[575]
Article 3 of the Charter
of Fundamental Rights for the European Union OJ 18.12.2000 C 364/1 (see
paragraph 1.45 above) specifically prohibits “eugenic
practices”.
[576]
See Macklin and
Gaylin (eds) Mental Retardation and Sterilization: A Problem of Complacency
and Paternalism (New York Plenum Press 1981); Ogbourne and Ward
“Sterilization, the Mentally Incompetent and the Courts” (1989) Anglo-Am L Rev
230; Park and Radford “From the Case Files: reconstructing a history of
involuntary sterilisation” 1998 Disability & Society Vol. 13, No. 3,
317; Manitoba Law Reform Commission Report on Sterilization and Legal
Incompetence (1992).
[577]
(1986) 31 DLR (4th)1.
[578]
(1986) 31 DLR (4th)1,
32.
[579]
(1986) 31 DLR (4th)1.
[580]
Re B (A Minor)
(Wardship: Sterilisation) [1987] 2 All ER 206; Re F (Mental Patient:
Sterilisation) [1989] 2 All ER 545. The test for capacity to consent
to medical treatment is set out in Re MB (An Adult) (Medical Treatment) [1997] 2 FCR 541. See Re A
(Medical Treatment) [1997] 2 FCR 541.
[581]
Official Solicitor
Practice Note [2001] 2 FCR 569. This Practice Note concerns making
medical and welfare decisions for adults lacking capacity. See further
paragraph 7.65 ff below.
[582]
Re GF (A
Patient) [1991] FCR 786. This was echoed by the Law Commission of
England and Wales in its Report Mental Incapacity (Law Com No. 231 1995)
at paragraph 6.4. However, if there is a doubt as to whether the
procedure is therapeutic, it should be referred to the court: Re SL (Adult
Patient) (Medical Treatment) [2000] 2 FCR 452.
[583]
Re LC (Medical Treatment) (Sterilisation) [1997] 2 FLR 258; Re S
(Adult: Sterilisation) [1999] 1 FCR 277.
[584]
In the case of a
male, different considerations will apply; Re A (Medical Treatment: Male
Sterilisation) [2000] 1 FCR 193, at 202-203.
[585]
[2003] UKPC
60, 97 of 2002.
[586]
The Adults with
Incapacity (Specified Medical Treatments) (Scotland) Regulations 2002 (No.
275), Schedule 1, Part I.
[587]
Drug treatment of
an adult without capacity for the purpose of reducing sex drive (other than
surgical implantation of hormones) requires a certificate from a practitioner
appointed by the Mental Welfare Commission certifying that the adult is
incapable in relation to the decision and that the treatment is likely to
safeguard or promote the adult’s physical or mental health: Regulation 4 of The
Adults with Incapacity (Specified Medical Treatments) (Scotland) Regulations
2002 (No. 275).
[588]
See further
paragraph 7.77 below.
[589]
LRC 33-1990.
[590]
(1986) 31 DLR (4th)1.
See paragraph 6.55 above. See the discussion of Re Eve and the US
Supreme Court decision on sterilisation Buck v Bell (1927), 274 US 200
in North Western Health Board v HW Supreme Court 8 November 2001.
[591]
Law Reform
Commission Report on Sexual Offences Against the Mentally Handicapped
(LRC 33-1990) at paragraph 41.
[592]
Donnelly
“Non-Consensual Sterilisation of Mentally Disabled People: The Law in Ireland”
(1997) 32 Ir Jur 297, 310.
[593]
Murray v
Ireland [1991] ILRM 465, 471, 476. A wider formulation of this right
was put forward in In re F (Mental Patient: Sterilisation) [1989] 2 WLR
1025, 1068 where Lord Brandon regarded the right to bear children as “one of
the fundamental rights of a woman.”
[594]
See paragraph 6.29
ff above.
[595]
See paragraph 7.09
below.
[596]
See paragraph 7.10
below.
[597]
See paragraphs
7.13-7.14 below.
[598]
Commission on the
Status of People with Disabilities A Strategy for Equality: Report of the
Commission on the Status of People with Disabilities (1996) at paragraph
18.27 ff.
[599]
Ibid at
paragraph 18.31.
[600]
Department of
Justice, Equality and Law Reform Towards Equal Citizenship: Progress Report
on the Implementation of the Recommendations of the Commission on the Status of
People with Disabilities (Stationery Office 2000).
[601]
Ibid at
226.
[602]
See paragraph 7.98
below. The Commission has examined the broader area of consent to medical
treatment in Chapter 7 below.
[603]
The term “medical practitioner” is generally used in this chapter as an
umbrella term to cover clinicians of all kinds including general practitioners,
hospital consultants, surgeons and dentists.
[604]
In this chapter healthcare decisions can generally be taken to refer to
decisions concerning any surgical, medical, nursing, optical or dental
treatment, procedure or examination. Clinical trials and research are
examined as a discrete area in paragraph 7.61 ff below.
Involuntary psychiatric admissions under the Mental Health Act 2001 are
outside the scope of this Consultation Paper.
[605]
See also Law Reform Commission Consultation Paper on Law and the Elderly (LRC
CP 23-2003) at paragraphs 1.08-1.10; 3.13-3.15; 4.47-4.51; 6.62-6.72.
[606]
The law in this area can be traced back as far as Slater v Baker &
Stapleton 95 Eng. 860, 2 Wils KB 359 (1767). See Mazur “Influence of
the law on risk and informed consent” 2003 BMJ 327: 731-734. See
generally Madden Medicine, Ethics and the Law (Butterworths 2002) at
Chapter 9; Mills Clinical Practice and the Law (Butterworths 2002) at
Chapter 4; Tomkin and Hanafin Irish Medical Law (Round Hall Press 1995)
at Chapter 3.
[607]
See Mills Clinical Practice and the Law (Butterworths 2002) at paragraph
4.06–4.09; Irish Medical Council A Guide to Ethical Conduct and Behaviour (6th
ed 2004) at paragraph 17.1.
[608]
The term ‘informed consent’ appears to have been coined in the Californian case
of Salgo v Leland Stanford Junior University Board of Trustees 154 Cal.
App.2d 560, 317 P.2d 170 (1957). See generally Faden and Beauchamp A
History and Theory of Informed Consent (Oxford University Press 1986);
Donnelly Consent: Bridging the Gap between Doctor and Patient (Cork
University Press 2002); Walsh v Family Planning Services Ltd [1992] 1 IR 496; Bolton v Blackrock
Clinic Supreme Court 23 January 1997; Geoghegan v Harris [2000] 3 IR 536; Quinn v South Eastern
Health Board High Court (Ó’Caoimh J) 22 March 2002; Philip v Ryan
High Court (Peart J) 11 March 2004.
[609]
“Ethically valid consent is a process of shared decision-making based upon
mutual respect and participation, not a ritual to be equated with reciting the
contents of a form that details the risks of particular treatments.”:
President’s Commission for the Study of Ethical Problems in Medicine and
Biomedical Healthcare Research Making Healthcare Decisions – A Report on the
Ethical and Legal Implications of Informed Consent in the Patient –
Practitioner Relationship Volume One (New York 1982) at 2.
[610]
The requirement of free and informed consent is recognised in Article 3 of the Charter
of Fundamental Rights of the European Union OJ No. 364/1 (2000). See
paragraph 1.45 above. See also the Council of Europe
Convention on Human Rights and Biomedicine (ETS 164 and additional
Protocol ETS 168) to which Ireland is not yet a party. See further
paragraphs 7.11-7.12 below.
[611]
See Donnelly Consent: Bridging the Gap between Doctor and Patient (Cork
University Press 2002) at 50.
[612]
See
generally Grisso and Applebaum Assessing Competence to Consent to Treatment (Oxford
University Press 1998) at 6; Irish Medical Council A Guide to Ethical
Conduct and Behaviour (6th ed 2004) at paragraph 17.1; fn 6
above.
[613]
See Re
T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649; JM v St Vincent’s
Hospital [2003] 1 IR 321.
[614]
Re
a Ward of Court (No.2) [1996] 2 IR 79, 163 per Denham J. See further
paragraph 7.08 ff below.
[615]
Section 69(2) of the Medical Practitioners Act 1978.
[616]
The
Medical Council’s ethical guidelines are currently updated every five
years. However, the Medical Council recently indicated that it intends to
publish amendments on a more regular basis on a web site: Ganly, “Changes
sought on ‘vulnerable’ patients” Irish Medical Times Vol. 39 No.15, 15
April 2005 at 6.
[617]
Irish
Medical Council A Guide to Ethical Conduct and Behaviour (6th
ed 2004) at paragraph 17.1.
[618]
(1990)
72 OR (2d) 417, 432.
[619]
In
some situations, the common law doctrine of necessity may provide a legal
justification: see paragraph 7.29 ff below.
[620]
Ryan
v Attorney General [1965] IR 294, 313 per Kenny J.
[621]
Article 40.3.2°; Hanrahan v Merck, Sharpe and Dohme Ltd [1988] ILRM 629; AD v Ireland [1994]
1 IR 369. It would appear that in certain instances the right to bodily
integrity must also be recognised by private individuals: The People (DPP) v
T (1988) 3 Frewen 141, 158 .
[622]
Re
a Ward of Court (No.2) [1996] 2 IR 79, 124-125.
[623]
[1996]
2 IR 79.
[624]
See
further paragraph 1.31 above.
[625]
Article 8 of the ECHR is quoted at paragraph 6.07 above.
[626]
See
paragraph 1.34-1.36 above.
[627]
X
and Y v The Netherlands (1986) 8 EHRR 235 at paragraph 22.
[628]
YF
v Turkey (2004) 39 EHRR 34 (forced
gynaecological examination); Glass v The United Kingdom (2004) 39 EHRR 15. See also the
Commission decisions in Acmane v Belgium (1984) 40 DR 254, X v
Austria (1980) 18 DR 154.
[629]
Pretty
v United Kingdom (2002) 35 EHRR 1, paragraph 63.
[630]
Council of Europe Convention for the Protection of Human Rights and Dignity
of the Human Being with regard to the Application of Biology and Medicine
Oviedo, 4. IV.1997. Although a member of the Council of Europe, Ireland
is not yet a signatory to the Convention.
[631]
Article 6(1) of the Biomedicine Convention.
[632]
On the
question of making legal provision for the appointment of substitute
decision-makers see Law Reform Commission Consultation Paper on Law and the
Elderly (LRC CP 23-2003) at Chapter 6.
[633]
Article 9 of the Biomedicine Convention.
[634]
See
further paragraph 7.38 ff below.
[635]
See
McMahon and Binchy Law of Torts (3rd ed Butterworths 2000) at
paragraph 14.76; Walsh v Family Planning Services Ltd [1992] 1 IR 496, 531.
[636]
[1997]
8 Med L.R. 75.
[637]
See
Charleton, McDermott and Bolger Criminal Law (Butterworths 1999) at paragraph
9.77 ff. Cases on the common law offence of battery (which was
codified in the Non-Fatal Offences Against the Person Act 1997) suggest
that it makes no difference if the touching is by hand (see, for example, Latter
v Braddell (1881) L.J.Q.B. 166, 448) or with some instrument controlled by
the doctor (see, for example, S v McC; W v W [1972] AC 24, 57).
[638]
Under
section 2(1) of the Age of Majority Act 1985.
[639]
See
paragraph 2.23 ff above.
[640]
See
paragraph 2.28 ff above.
[641]
Re
MB (An Adult) (Medical Treatment) [1997] 2 FCR 541.
[642]
Re
a Ward of Court (No.2) [1996] 2 IR 76; J.M. v St Vincent’s Hospital [2003]
1 IR 321.
[643]
Re
MB (An Adult) (Medical Treatment) [1997] 2 FCR 541.
[644]
See,
for example, Re C (Refusal of Medical Treatment) [1994] 1 All ER 819; Norfolk
and Norwich Healthcare (NHS) Trust v W [1996] 2 FLR 613; Tameside and
Glossop Acute Services Trust v CH [1996] 1 FLR 762.
[645]
Assessment of capacity is discussed at Part C below.
[646]
See
section 4 of the Health Act 1953; Irish Medical Council A Guide to
Ethical Conduct and Behaviour (6th ed 2004) at paragraph 17.1; Sidaway
v Board of Governors of the Bethlem Royal Hospital and Maudsley Hospital [1985] AC 871; Re MB (Medical Treatment)
[1997] 2 FCR 541.
[647]
Re
a Ward of Court (No.2) [1996] 2 IR 79, 156.
[648]
[1992] 4 All ER 649, 661. See also Sidaway
v Board of Governors of the Bethlem Royal Hospital [1985] AC 871, 904; Gillick v West
Norfolk and Wisbech Area Health Authority [1986] 1 AC 112, 169 and 186.
[649]
[1994]
1 All ER 819. See further paragraph 2.13 above.
[651]
In Re
a Ward of Court (No.2) [1996] 2 IR 79,124 Hamilton CJ stated that the right
to life under Article 40.3 of the Constitution “necessarily implies the right
to have nature take its course and to die a natural death”.
[652]
[2002] 2 All ER 449, 474.
[654]
See
further paragraph 3.26 above. Research indicates that if the
decision-making task is broken down into manageable, simpler steps capacity may
improve: see Wong et al “The capacity of people with a ‘mental
disability’ to make a healthcare decision” (2000) 30 Psychological Medicine
295 at 302.
[655]
See
Wong et al “The capacity of people with a ‘mental disability’ to make a
health care decision” (2000) 30 Psychological Medicine 295; Applebaum
and Grisso “Assessing patients’ capacities to consent to treatment” (1988) 319 New
England Journal of Medicine 1635; Arscott et al “Assessing the
capacity of people with learning disabilities to make decisions about
treatment” (1999) 29 Psychological Medicine 1367; Kapp and Mossman
“Measuring Decisional Capacity: Cautions on the Construction of a ‘Capacimeter’
(1996) 2 Psychology, Public Policy, and Law 73.
[656]
See
Glass “Redefining definitions and devising instruments: two decades of
assessing mental competence” (1997) 20 International Journal of Law and
Psychiatry 5.
[657]
The
MMSE is designed to assess orientation, attention, calculation and
language. See Folstein “Mini-mental state: a practical method for the
grading the cognitive state of patients for clinician” (1975) Vol.12 Journal
of Psychiatric Research 189.
[658]
Wechsler Wechsler Adult Intelligence Scale (3rd ed London The
Psychological Corporation).
[659]
See
Murphy and Clare “Adults’ Capacity to Make Legal Decisions” in (eds Carson and
Bell) Handbook of Psychology in Legal Contexts (2nd ed
Wiley & Sons 2003) at 35.
[660]
See
generally British Medical Association and the Law Society Assessment of
Mental Capacity: Guidance for Doctors and Lawyers (2nd ed 2004).
[661]
Irish
Medical Council A Guide to Ethical Conduct and Behaviour (6th
ed 2004).
[662]
Some
hospitals have adopted their own detailed guidelines on consent issues.
For example, the Adelaide and Meath Hospital incorporating the National
Children’s Hospital has its own Guidelines in Relation to Obtaining Consent (2005)
which are periodically revised.
[663]
Irish
Medical Council A Guide to Ethical Conduct and Behaviour op cit fn 59 at
paragraph 17.1. In Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449 Butler-Sloss P stated
that where there is a disagreement about capacity “it is of the utmost
importance that the patient is fully informed of the steps being taken [to
resolve the issue] and made a part of the process.” (at paragraph 100).
[664]
British Medical Association Consent Tool Kit (2nd ed 2003)
available at http://www.bma.org.uk/ap.nsf/Content2/consenttk2.
[665]
Adults
with Incapacity (Scotland) Act 2000 Code of Practice for Persons Authorised to
Carry Out Medical Treatment or Research under Part 5 of the Act SE/2002/73
(2002) and Supplement SE/2002/111 (2002).
[666]
Section 47 of the Adults with Incapacity (Scotland) Act 2000.
[667]
Adults
with Incapacity (Scotland) Act 2000 Code of Practice for Persons Authorised to
Carry Out Medical Treatment or Research under Part 5 of the Act SE/2002/73
(2002) at paragraph 1.6.
[668]
Ibid.
[669]
See
paragraph 7.85 ff below.
[670]
See
paragraph 7.08 ff above.
[671]
McMahon and Binchy Law of Torts (Butterworths 3rd ed 2000) at
paragraph 22.73.
[672]
See
paragraph 3.13 ff.
[673]
See
Madden Medicine, Ethics and Law (Butterworths 2002) at paragraph 9.18;
page 12 above.
[674]
See
Law Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at paragraph 6.63.
[675]
The
Commission understands that where a patient who lacks capacity lives in a
residential care facility, there is a practice whereby the director of the
facility may purport to ‘give consent’ on their behalf where no next of kin is
available for this purpose.
[676]
The
Commission’s Consultation Paper on the Rights and Duties of Cohabitees (LRC
CP 32-2004) recommended that consideration should be given to including
cohabitees within the definition of persons with whom a doctor treating a
patient should confer if the patient is unable to communicate or to understand
(at paragraph 9.06).
[677]
Skegg Law,
Ethics and Medicine (Clarendon Press Oxford 1984) at 73. See also
Madden Medicine, Ethics and the Law (Butterworths 2002) at paragraph
9.18.
[678]
[1996]
2 IR 79.
[679]
Law
Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003).
[680]
Ibid
at paragraph 1.23.
[681]
Irish
Medical Council A Guide to Ethical Conduct and Behaviour (6th
ed 2004) at paragraph 2.2.
[682]
Comments of Mr John Hillery, President of the Medical Council, reported in
Ganly, “Changes sought on ‘vulnerable’ patients’” Irish Medical Times
Vol. 39 No.15, 15 April 2005 at 6.
[683]
[1954]
IR 73. See also Bolam v Friern Hospital Management Committee [1957]
2 All ER 118.
[684]
[1967]
IR 173.
[685]
See
also Roche v Peilow [1985] IR 232; Dunne v National Maternity
Hospital [1989] IR 91; Madden Medicine, Ethics and the Law (Butterworths
2002) at paragraph 9.18.
[686]
See Re
F (Mental Patient: Sterilisation) [1989] 2 All ER 545, 564-565 per Lord
Goff.
[687]
See Law Reform Commission Consultation Paper on Law and the Elderly (LRC
CP 23-2003) at paragraph 6.62.
[688]
Skeggs
Law, Ethics and Medicine (Clarendon Press Oxford 1984) at 73; House of
Lords and House of Commons Joint Committee on the Draft Mental Incapacity
Bill (2003) HL Paper 189-1; HC 1083-1 (The Stationery Office Limited) at
paragraph 106. See also Law Commission of England and Wales
Mental Capacity (Law Com No 231), Chapter 4.
[689]
(1937)
3 Ir Jur Reports 74.
[690]
See
now sections 2 – 4 of the Non-Fatal Offences Against the Person Act 1997;
paragraph 7.14 above.
[691]
(1937)
3 Ir Jur Reports74, 76.
[692]
[1989]
2 All ER 545.
[693]
On the
subject of non-consensual sterilisation, see further paragraph 6.52 ff above.
[694]
[1989]
2 All ER 545, 565.
[695]
See
also Re A (Children) [2001] FLR 1; R v Bournewood Community and
Mental Health Trust ex parte L [1998] 3 All ER 289.
[696]
This
corresponds to the requirement in Bolam v Friern Hospital Management
Committee [1957] 2 All ER 118 to act in accordance with a responsible body
of medical opinion. In relation to experimental treatment see Simms v
Simms; A v A [2003] 2 WLR 1465.
[697]
Convention
for the Protection of Human Rights and Dignity of the Human Being with regard
to the Application of Biology and Medicine Oviedo, 4. IV.1997.
Ireland is not yet a party to the Convention. See further paragraph 7.12
below.
[698]
[1996]
2 IR 79.
[699]
Denham J’s dictum in this regard was cited by Hardiman J in North Western
Health Board v HW [2001] 3 IR 622, 750-751.
[700]
[2003]1 IR 321. See paragraph 7.57 below.
[701]
Irish
Medical Council A Guide to Ethical Conduct and Behaviour (6th
ed 2004) at paragraph 18.4.
[702]
The European Court
of Human Rights’ decision in Glass v The United Kingdom (2004) 38 EHRR 15, concerning a minor,
suggests that in a life and death situation where the best course of action is
not clear or there is a conflict between relatives and doctors, an emergency
court application should be made seeking directions.
[703]
Re F (Mental
Patient: Sterilisation) [1989] 2 All ER 545, 571, per Lord Jauncey.
[704]
[1997] 2 FCR 172.
[705]
[2000] 1 FLR
549. See also Re SL (Adult Patient: Sterilisation) [2000] 3 WLR
1288.
[706]
“Obviously, only
if the account is in relatively significant credit will the judge conclude that
the application is likely to advance the best interests of the claimant.”
Re A (Male Sterilisation) [2001] 1 FLR 549, 560 per Thorpe
LJ. This approach was approved by Munby J in R (Burke) v General
Medical Council [2004] EWHC 1879.
[707]
[1989] 2 All ER
545.
[708]
[1989] 2 All ER
545, 566.
[709]
[1989] 2 All ER
545.
[710]
British Medical
Association and The Law Society Assessment of Mental Capacity: Guidance for
Doctors and Lawyers (2nd ed 2004) at 123. This would
appear not to take account of the distinctions drawn by Lord Goff in Re F
(Mental Patient: Sterilisation) [1989] 2 All ER 545 between a temporary
lack of capacity and an ongoing lack of capacity.
[711]
[1996] 2 IR 79,
158.
[712]
[1996] 2 IR 79.
[713]
[1996] 2 IR 79,
99.
[714]
See Re a Ward
of Court (No.2) [1996] 2 IR 79, 97. See further paragraph 7.54 ff below.
[715]
Law Reform
Commission Consultation Paper on Law and the Elderly (LRC CP 23-2003).
[716]
Ibid at
paragraph 6.63.
[717]
Ibid at
paragraph 6.64.
[718]
See paragraph 7.85
ff below.
[719]
See generally
paragraph 4.02 ff above; O’Neill Wards of Court in Ireland (First
Law 2004); Law Reform Commission Consultation Paper on Law and the Elderly (LRC
CP 23-2003).
[720]
A form for medical
practitioners to complete in relation to proposed treatment is available from
the Registrar of Wards of Court. The form seeks information on the nature
of the proposed procedure, the reasons for it, the risks involved, whether the
procedure has been explained to the patient, whether the patient is capable of
understanding the procedure and whether the patient has objected to the
procedure being carried out. Confirmation is also required that the
patient’s next of kin have been informed.
[721]
See O’Neill Wards
of Court in Ireland (First Law 2004) at paragraph 3.8.
[722]
O’Neill Wards
of Court in Ireland (First Law 2004) at paragraph 3.8. This shows a
bifurcation between the incapacity in law of a person who has been made a Ward
of Court to consent to medical treatment, and their functional ability to make
such a decision in practice.
[723]
[1996] 2 IR 79.
[724]
[1996] 2 IR 79,
99.
[725]
Denham J listed
factors which should be taken into account by the Court in arriving at a
decision including the person’s constitutional right to life, privacy, bodily
integrity, autonomy, dignity in life and dignity in death [1996] 2 IR 79, 167.
[726]
[2003] 1 IR 321.
[727]
[2001] 1 IR 321,
325. O’Neill notes that Finnegan P did not directly address the issue of
mental capacity: O’Neill Wards of Court in Ireland (First Law 2004) at
118.
[728]
Law Reform
Commission Consultation Paper on Law and the Elderly (LRC CP 23-2003) at
Chapter 6.
[729]
Ibid at
paragraph 3.14.
[730]
See generally Law
Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at Chapter 3; paragraph 4.37 ff above.
[731]
Ibid at
paragraphs 3.13 – 3.15.
[732]
(LRC CP 23-2003).
[733]
Ibid at
paragraph 3.15.
[734]
See paragraph 7.59
above; paragraph 7.67 ff below.
[735]
(LRC CP 23-2003).
[736]
S.I. No. 190 of
2004.
[737]
Council Directive
2001/20/EC on the approximation of the laws, regulations and administrative
provisions of the Member States relating to the implementation of good clinical
practice in the conduct of clinical trials on medicinal products for human use
OJ L 121, 1.5.2001 at 34. See McHale “Health Law in Europe. A Matter of
Convergence” (2003) 9 MLJI 17.
[738]
The Clinical Trial
Regulations supersede the regime in the Control of Clinical Trials Acts 1987
and 1990. Non-medicinal substances remain subject to the provisions
of the Control of Clinical Trials Acts 1987 and 1990.
[739]
Law Reform
Commission Consultation Paper on Law and the Elderly (LRC CP 23-2003) at
Chapter 6.
[740]
See Re T
(Adult: Refusal of Treatment) [1993] Fam 95, 115-116; Re C (Adult:
Refusal of Treatment) [1994] 1 WLR 290; Re AK (Medical Treatment:
Consent) [2001] 1 FLR 129; HE v A Hospital NHS Trust [2003] 2 FLR
408; R (Burke) v General Medical Council [2004] EWHC 1879.
[741]
See sections 24 to
26 of the Mental Capacity Act 2005.
[742]
See Tomkin and
Hanafin “Medical Treatment at Life’s End: The Need for Legislation” (1995) MLJI
3.
[743]
Law Reform
Commission Consultation Paper on Law and the Elderly (LRC CP 23-2003) at
paragraphs 3.48 - 3.51.
[744]
See Irons “Living
wills – the dilemma” [2004] NLJ 966.
[745]
Practice Note [2001]
2 FCR 569. This superseded earlier Practice Notes.
[746]
This jurisdiction
was established in Re F (Mental Patient: Sterilisation) [1989] 2 All ER
545. Such declarations can be interim or final: see NHS Trust v T [2005] 1 All ER 387.
[747]
See Re SL
(Adult Patient) (Medical Treatment) [2000] 2 FCR 452. Specific
Guidance is given in the Practice Note in relation to sterilisation and
permanent vegetative state cases.
[748]
Re Y (Mental
Incapacity: Bone Marrow Transplant) [1997] 2 FCR 172; Re A (Medical
Treatment: Male Sterilisation) [2000] 1 FCR 193; A v A Health Authority [2002]
1 FCR 481.
[749]
Evidence is
generally required from a psychiatrist or psychologist who has assessed the
patient and applied the test in Re MB (An Adult) (Medical Treatment) [1997] 2 FCR 541.
[750]
See paragraph 6.56
ff above.
[751]
See further
paragraph 3.04 above.
[752]
See Chapter 4
above.
[753]
See Department for
Constitutional Affairs Mental Capacity Bill: Draft Code of Practice (2004)
at paragraph 6.7.
[754]
Section 11(7)(c)
of the Mental Capacity Act 2005.
[755]
Section 11(8)(a)
of the Mental Capacity Act 2005.
[756]
Sections 24 – 26
of the Mental Capacity Act 2005; paragraphs 7.63 - 7.64 above.
[757]
See sections 16 – 20 of the Mental Capacity Act 2005.
[758]
See Department for
Constitutional Affairs Mental Capacity Bill: Draft Code of Practice (2004)
at paragraph 5.23.
[759]
See sections 35 -
41 of the Mental Capacity Act 2005.
[760]
The form of
certificate was laid down in The Adults with Incapacity (Medical Treatment
Certificate) (Scotland) Regulations 2002 (No. 208) which came into force on
1 July 2002. Involuntary psychiatric treatment is excluded from the scope
of the legislation.
[761]
Primary
responsibility is not defined in the Adults with Incapacity (Scotland) Act
2000.
[762]
Section 47(2) of
the Adults with Incapacity (Scotland) Act 2000.
[763]
It is planned to
introduce amending legislation to increase this to three years where the adult
has a degenerative or progressive illness with no prospect of improvement or
recovery. See Christie “Scotland: law paves way for guardians” The
Guardian (London) 3 November 2004, Special Supplement at 5.
[764]
Section 50 of the Adults
with Incapacity (Scotland) Act 2000.
[765]
Scottish Executive
Social Research Review of the Code of Practice for Part 5 of the Adults with
Incapacity (Scotland) Act 2000 (2004) at paragraph 11.4.
[766]
Scottish Executive
Social Research Review of the Code of Practice for Part 5 of the Adults with
Incapacity (Scotland) Act 2000 (2004) at Chapter 8.
[767]
See Christie
“Scotland: law paves way for guardians” The Guardian (London) 3 November
2004, Special Supplement at 5.
[768]
Section 50(3) of
the Adults with Incapacity (Scotland) Act 2000.
[769]
Section 50(4) of
the Adults with Incapacity (Scotland) Act 2000.
[770]
Section 50(5) of the Adults with Incapacity (Scotland) Act 2000.
[771]
Section 50(6) of
the Adults with Incapacity (Scotland) Act 2000.
[772]
Section 48(2) and
(3) of the Adults with Incapacity (Scotland) Act 2000 and The Adults with
Incapacity (Specified Medical Treatments) (Scotland) Regulations 2002 (No.
275), Schedule 1, Part I.
[773]
Pursuant to
Section 48(2) and (3) of the Adults with Incapacity (Scotland) Act 2000 and
The Adults with Incapacity (Specified Medical Treatments) (Scotland)
Regulations 2002 (No. 275).
[774]
The form of the
certificate is set out in The Adults with Incapacity (Specified Medical
Treatments) (Scotland) Regulations 2002 (No. 275), Schedule 2.
[775]
See NAMHI Who
Decides and How? People with Intellectual Disability and Decision Making
(2003) at Chapter 4.
[776]
In England and
Wales the Mental Capacity Act 2005 was specifically designed to address
the problem of serious healthcare decisions being delayed because the clinician
is not clear of their legal ground. See Department for
Constitutional Affairs Mental Capacity Bill – Full Regulatory Impact
Assessment (2004) at paragraph 14.
[777]
Commission on the
Status of People with Disabilities A Strategy for Equality: Report of the
Commission on the Status of People with Disabilities (1996) at paragraph
10.35.
[778]
Commission on the
Status of People with Disabilities A Strategy for Equality: Report of the
Commission on the Status of People with Disabilities (1996) at paragraph
10.33.
[779]
See generally Law
Reform Commission Consultation Paper on Law and the Elderly (LRC CP
23-2003) at Chapter 6; paragraph 3.13 ff above.
[780]
See Chapters 2 and
3 above.
[781]
See Chapter 3
above.
[782]
Irish Medical Council A Guide to Ethical Conduct and Behaviour (6th
ed 2004).
[783]
See Chapter 3
above.
[784]
See paragraph 7.27
above.
[785]
See Chapters 2 and
3 above.
[786]
See paragraph 3.26
ff above.
[787]
Law Reform
Commission Consultation Paper on Law and the Elderly (LRC CP 23-2003),
Chapter 6; paragraph 7.82 above.
[788]
See Scottish Law
Commission (Discussion Paper No.94) Mentally Disabled Adults: Legal
Arrangements for Managing their Welfare and Finances (1991) at paragraph
3.26.
[789]
See Law Commission
Mentally Incapacitated Adults and Decision-making: Medical Treatment and
Research (No. 129 1993) at Part VI.
[790]
This accords with
the Commission’s recommendation at paragraph 6.62 above.
[791]
See paragraph 7.77
above.
[792]
See generally Re
a Ward of Court (No.2) [1996] 2 IR 79; R (Burke) v General
Medical Council [2004] 2 FLR 1121.
[793]
Where the adult is an involuntary patient under the Mental Health Act 2001 psychosurgery
requires the written consent of the patient and authorisation by a Mental
Health Tribunal where it is considered to be in the best interests of the
patient: section 58 of the Mental Health Act 2001. Such a
decision may be appealed to the Circuit Court.
[794]
Where the adult is
an involuntary patient under the Mental Health Act 2001 ECT requires the
approval by both the consultant psychiatrist and a second psychiatrist on the
matter being referred to them: Section 59(1) of the Mental Health Act 2001.
The Mental Health Commission is required to draw up rules governing the use of
ECT.
[795]
See de Cruz Comparative
Health Care (Cavendish Publishing Limited 2001) at 283; Strunk v Strunk (1969)
445 SW 2d 145; see Re Y [1997] 2 FCR 172 for relevant factors considered
by the court in relation to bone marrow harvesting from a woman with
intellectual disability in order to benefit her sister. In Re F [1990] 2 AC 1, 52 Lord Bridge suggested that
live organ donation by an adult without capacity to consent required similar
safeguards to sterilisation. See also Law Reform Commission of Canada Procurement
and Transfer of Human Tissues and Organs (Working Paper No.66 1992) at
174-175; Law Commission Mentally Incapacitated Adults and Decision-making:
Medical Treatment and Research (No. 129 1993) at Part VI.
[796]
See Simms v
Simms ; A v A [2003] 2 WLR 1465; paragraph 7.61 ff above.
[797]
See paragraph 7.85
ff above.