Assisted Decision-Making (Capacity) Bill 2013 and the Implications of the Bill for the treatment of vulnerable persons in congregated settings
Submissions by The Irish Mental Health Lawyers Association on the Assisted Decision–Making (Capacity) Bill were made to the Department of Justice on the 30th of October 2013.
The Prime Time programme aired last night on the treatment of vulnerable persons in the care of the HSE at Áras Attracta highlights the urgent need for the Assisted Decision-Making legislation to be implemented as a matter of urgency. We and other organisations have made submissions in relation to appropriate deprivation of liberty safeguards which we consider should have been included in the Bill. An extract from our submissions are set out below.
We consider that it is necessary at this time, to emphasise that there must be appropriate legal mechanisms in place to ensure there is proper oversight of vulnerable adults in care, who cannot speak for themselves and who are entitled to be afforded their basic human rights. Legal mechanisms such as deprivation of liberty safeguards can serve to shine a light on poor practice and unlawful acts. We also consider that it is of the utmost importance that serious consideration is given to the immediate implementation of the Personal Advocacy Service provisions of the Citizens Information Act 2007.
EXTRACT FROM SUBMISSION
1. Reviews of detention of persons who lack capacity admitted to residential centres other than approved centres.
The Bill does not fully resolve the issue of people who lack capacity and are admitted to a residential centre on a "voluntary" basis but are de facto detained in the centre. This is an issue which arises in residential settings such as nursing homes, social care institutions and centres for people with disabilities. Ireland is not directly tackling the problem of the "Bournewood gap" and ECHR case-law such as H.L. v UK; Stanev v Bulgaria; D.D. v Lithuania and other cases.
Recommendation
The IMHLA recommends that the Bill should state that if a person is being admitted to any residential centre, this can only occur on a voluntary basis, where the person has capacity to consent to such admission and does consent to such admission. Capacity to consent should be assessed appropriately.
Áine Hynes, IMHLA Phone 01 6779097
10 December 2014