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.  


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.

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

Full IMHLA Submission on Bill

Commentary on the Assisted Decision-Making (Capacity) Bill 2013

Our President, Dr Darius Whelan, has written a blog post about the Assisted Decision-Making (Capacity) Bill 2013 on his personal blog here.   

This blog post also contains links to various other commentaries on the Bill which have been written so far.  

Publication of the Assisted Decision-Making (Capacity) Bill 2013

IMHLA welcomes the publication of the Assisted Decision-Making (Capacity) Bill 2013 as an important step in the reform of the long-outdated law on mental capacity. The new legislation will greatly assist vulnerable people with limited decision making capacity to better manage their personal, property and financial affairs.  We welcome the replacing of the Wards of Court system with a new legal framework that gives greater autonomy to those who need assistance in making fundamental decisions concerning their lives.  We welcome the provisions for detention related safeguards and reviews of people who are detained in psychiatric institutions under orders made under the current Ward of Court system. We also welcome the announcement that the Bill will, at Committee Stage, incorporate provisions relating to Advance Care Directives, which will be provided by the Department of Health.

We congratulate Justice Minister Alan Shatter and Junior Minister Kathleen Lynch for their commitment to getting this Bill published. This Bill will replace the long-outdated Lunacy Act of 1871. Its publication represents crucial progress in Ireland’s journey towards implementation of the UN Convention of the Rights of Persons with Disabilities (CRPD).

While we welcome the publication of this Bill, we are also concerned on our initial review of the Bill that there are a number of flaws within it that stop it from being fully in line with the CRPD. In particular it seems that the provisions of the proposed legislation may not be available to people who are suffering from a Mental Disorder in relation to their treatment under the Mental Health Act 2001. The Convention expressly states that people with disabilities, including mental health problems, should enjoy legal capacity on an equal basis with others in all aspects of life.

We look forward to working with Oireachtas Members as the Bill goes through the Houses and to further clarification on the interaction of this legislation with the Mental Health Act 2001.

For further information please contact:

Áine Hynes Chair, Irish Mental Health Lawyers Association

01 6779097




4th March 2013

The Shelbourne Hotel St. Stephen’s Green Dublin 2

This seminar will deal with the current difficulties facing solicitors dealing with capacity issues inpractice and will offer practical advice and guidance.

Jim Finn, Registrar of the Wards of Court and will present a paper on wardship applications.

Anne Stephenson’s paper Capacity – A Variable Concept will address: Capacity; Wills and EPA’s - Our Duty of Care; aging population, increase in need for consideration of capacity; Law Society recommendations regarding a consideration of capacity; Mental capacity – the outcome, status or functional approach; New element for test for testamentary capacity – Key v Key case; Capacity for EPA’s; Precedent letters to doctors and taking instructions where client ill, elderly or there is doubt of capacity with precedent instructions sheet.

Áine Hynes will address recent cases concerning capacity and medical treatment and how the courts are approaching substituted decision making.

Jim Finn has 30 years experience in the Courts Service. He has worked in a number of front line court offices as well as in administrative and support areas in the Service. He has worked in the Probate Office, the Office of the Accountant of Courts of Justice and the Circuit and District Courts Directorate. Jim is a barrister and was Examiner of the High Court before being appointed Registrar of Wards of Court in April 2010.

Anne Stephenson is Principal of Stephenson Solicitors. She is a member of STEP, the DSBA Probate and Taxation Committee and Mental Health and Capacity Committee, the Probate Liaison Committee and the Law Society’s Probate Administration and Trust Committee and is vice-Chairperson of the Committee of the Solicitors for the Elderly. She lectures, examines and tutors on the Law Society's Professional Courses on the Wills Trusts, Probate, Tax Planning and Conveyancing Modules and on the STEP Diploma in Wills, Trust & Estate Planning. She also lectures on the Law Society's CLE Courses, and to the DSBA and numerous other professional bodies. She is the co author of the OUP Manual on "Wills Probate and Estates" 3rd Edition 2011, and the OUP Manual on Conveyancing Volumes 1 & 2, 5th Edition 2010 and the co-author of OUP Manual on Capital Taxation 2nd edition. She is a contributor to “Irish Conveyancing Precedents”.

Conference Information

Date: 4th March 2013
Time: 2.30 – 5.00 pm
Location: The Shelbourne Hotel, St. Stephen’s Green, Dublin 2

Fees: € 150.00 Member, € 245.00 Non Member (inc. DSBA Membership for 2013)€ 95.00 Trainees in a Members Firm Registration: 2.00pm

2.30pm Opening Address
Presentations followed by questions and answers Tea and Coffee served during the interval

5.00pm Conclusion CPD: 2 1⁄2 hours Group Study

Minister Lynch announces membership of Expert Group to review the Mental Health Act 2001

Ms Kathleen Lynch T.D., Minister for Disability, Equality, Mental Health and Older People has today (Thursday 2ndAugust 2012) announced the establishment and membership of an Expert Group to review the Mental Health Act 2001.

A Steering Group which the Minister set up last year, recently completed an Interim Report on the Act identifying the key areas to be further examined and proposing a range of recommendations which the Minister has accepted.  

Minister Lynch said, "It was always my intention that the Interim Report would be subsequently referred to an Expert Group for the second and substantive phase of the review which would be principally tasked with fleshing out the Steering Group recommendations.  In considering membership of the group, I have consulted with key stakeholder organisations and beyond to ensure there is a broad range of relevant expertise available for the work ahead."  (The membership of the group is set out overleaf in addition to the group's terms of reference.)

The Minister went on to say, "I plan to address the first meeting of the group in September to impress upon the members the importance I attach to their work.  Our mental health legislation needs to be updated to take account of significant changes in mental health service delivery and in the area of human rights for people with disabilities since its enactment, and the work of the Expert Group is an important step forward in this regard.

I wish the members well and look forward to the group producing its report by end March 2013."

Notes to Editors:

The Membership of the group in addition to the group's terms of reference are set out below:

Membership of the Expert Group established to review the Mental Health Act 2001

Dr. Pat Bracken Consultant Psychiatrist 

Caitriona Browne Mental Health Nurse Manager

Lisa Corrigan Occupational Therapy Manager

Dr Mary Donnelly Senior Lecturer, Faculty of Law, UCC

Dr Rita Doyle GP

Patricia Gilheaney CEO, Mental Health Commission

Des Hogan Acting CEO, Irish Human Rights Commission

Áine Hynes Solicitor 

Dr Brendan Kelly Consultant Psychiatrist 

Tony Leahy National Mental Health Planning Specialist, HSE

Luke Mulligan (Chair) Department of Health

Dr. Edmond O'Dea Principal Clinical Psychologist

John Redican National Service Users Executive

Joan Regan Department of Health

Gerry Steadman Department of Health

Terms of Reference for the Expert Group established
to review the Mental Health Act 2001

The current Programme for Government includes a commitment to "review the Mental Health Act 2001 in consultation with service users, carers and other stakeholders, informed by human rights standards".

In approving the structure of the overall review, Minister of State Kathleen Lynch T.D., agreed that the review would be carried out in two parts.  The first phase, which would include public consultation, would be undertaken by a Steering Group and would seek to scope out the key areas of the Act to be examined and analysed.  The Steering Group would then make recommendations in an Interim Report which would be referred for the second and substantive phase of the review, to an Expert Group who would be principally tasked with fleshing out the Steering Group recommendations. 

The terms of reference for the Expert Group established to review the Mental Health Act 2001 are:-

1. To examine each of the recommendations of the Interim Report on the review of the Mental Health Act 2001, and 
a. propose which recommendations can be agreed without further assessment  or modification, 
b. establish which recommendations require further analysis before being finalised and reach conclusions in respect of the issues concerned, 
c. make decisions on those areas where the Steering Group had offered choices rather than specific recommendations.
2. To consider Departmental proposals for amending the Mental Health Act which pre-dated the Steering Group report and recommend a course of action in respect of those matters.
3. To examine any further specific issues which may be referred to the Expert Group by the Minister.
4. To ensure that the recommendations of the Expert Group take account of any Capacity legislation published in the meantime and be consistent with such legislation and existing criminal law insanity legislation, which is also under review at this time.

5. To conclude its deliberations and submit final report to the Minister by end March 2013.