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LEGISLATION MUST RESPECT THE RIGHT OF EVERYONE TO MAKE CHOICES FOR THEMSELVES June 2, 2022

Proposed changes to legislation (about to be commenced) must respect the right of everyone to make choices for themselves including people with intellectual disabilities, older people with diminished capacity or dementia, and people whose capacity has been affected by traumatic injury, Sage Advocacy has said.

Sage Advocacy, which provides advocacy and support services to older people, healthcare patients and adults who may be vulnerable, has warned that there are some worrying omissions from the Assisted Decision-Making (Capacity) (Amendment) Bill 2022, which is currently passing through the Dáil and Seanad.

Seven years ago, the Assisted Decision Making Capacity (ADM) Act 2015 was signed into law. When this law comes into effect, people will no longer be made a ward of court and a new decision support framework will be in place.

Mary Condell, Sage Advocacy’s legal advisor, said: “The commencement of this legislation is very long awaited and overdue.  Ireland is obliged to comply with its international human rights obligations, and the European Convention on Human Rights to respect the right of a person to make decisions for themselves about themselves and their affairs.

“Our present decision-making legislation dates from 1871 which predates principles contained in human rights legislation. Ireland ratified the UN Convention on the Rights of Persons with Disabilities (UNCRPD) and the ADM Act 2015 enables us to comply with our obligations under this Convention in relation to those whose decision-making capacity is in question or for those who lack the capacity to make decisions for themselves.”

In a submission to the Joint Oireachtas Committee on Children, Equality, Disability, Integration and Youth Sage Advocacy acknowledged that the Amendment Bill represents some essential legislative amendments necessary to enable the full commencement of the Assisted Decision-Making (Capacity) Act 2015.

Sage Advocacy said this legislation is crucial to ensure that the rights of adults whose decision-making capacity may be in doubt or who may lack decision-making capacity are respected

Sage Advocacy has welcomed many of the amendments in the bill relating to Enduring Powers of Attorney, personal welfare decisions, the dispensing of the requirement of wards of court to seek leave before applying for a review and the inclusion of a new subsection to give the Director of the Decision Support Service (DSS) a specific statutory function to enable the sharing of information to promote the safeguarding and welfare of relevant persons.

However, Sage Advocacy believes there are also a number of omissions from the bill, chiefly the statutory recognition of the right of access to independent advocacy.  This is already provided for in regulations and has been at the centre of significant public policy recommendations during the Covid-19 crisis.

Sage Advocacy stressed in its submission that it is imperative for the protection of all relevant persons that there is statutory recognition of independent advocacy.

Sage Advocacy believes that the legislation should be clarified to provide that a relevant person has a right to independent advocacy regardless of whether or not the relevant person has capacity to instruct the advocate.  

The ADM Act 2015 Act and the Amendment Bill (with Explanatory Memorandum) also outlines the right of a person to plan ahead particularly in relation to the making of an enduring power of attorney by appointing a person/s whom they wish to make personal welfare decisions or decisions in relation to their property and finances for them in the future if at a time in the future they are unable to do so themselves.

However, Sage Advocacy would be concerned that some people could be excluded from exercising this right if they are unable to afford to pay a solicitor or other adviser to support them to plan ahead.

Sage Advocacy believes that the legislation must reflect this and that legal aid should be available to enable each person to exercise their right to plan ahead to make an Enduring Power of Attorney.

A further omission from the legislation, which for many of Sage Advocacy’s clients, needs to be urgently addressed, is the statutory provision that a person should not be detained in a care setting against their will.  Clear legal procedures are required in relation to Protection of Liberty safeguards.

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