Mind the gap
A new day for legal capacity is set to dawn in June, with the commencement of significant provisions of the Assisted Decision-Making (Capacity) Act 2015. However, Áine Hynes warns that there are significant gaps in the legislation as it stands.
The proposed commencementof the Assisted Decision-Making (Capacity) Act 2015 in June 2022 marks a new era for legal capacity. Legislation that supports people in their decision-making is very much welcome.
The act is very ambitious in scope, dealing with enduring powers of attorney (EPAs), advance healthcare directives, and the ratification of the Hague Convention on the International Protection of Adults.
Perhaps, most significantly, it is designed to support people in their decision-making and to replace the system of wardship, which has existed in one form or another since 1324.
The 2015 act will repeal the current capacity legislation (the Lunacy Regulation (Ireland) Act 1871). The new system of supported decision-making will involve:
- Decision-making assistants (private arrangement),
- Co-decision-makers (to be registered with the Decision Support Service), and
- Decision-making representatives (requires a Circuit Court application).
Extensive work has been undertaken by the Decision Support Service (DSS) in preparing for the new system, including investment in IT and HR. Aside from establishing the Office of the DSS, the director of the DSS has been actively involved in training, in the approval and finalisation of codes of practice (drafted by the National Disability Authority in consultation with relevant professionals), and engagement with various stakeholders.
Interviews are currently taking place to establish panels under the 2015 act. As part of preparation for commencement, the DSS is also engaged in an interagency working group with the Courts Service.
Proposed amendments
Responsibility for the legislation has moved from the Department of Justice to the Department of Children, Equality, Disability, Integration and Youth (CEDIY). A draft general scheme and heads for the Assisted Decision-Making (Capacity) (Amendment) Bill 2021 was published in November 2021. An open call was made on 20 December 2021 by the Joint Committee on CEDIY for submissions on the amendment bill.
The scheme extends to 174 pages, with a considerable number of amendments on an act not yet commenced. The Law Society’s Task Force on Mental Health and Capacity Law prepared one of the 25 submissions that were made. The committee issued its report on pre-legislative scrutiny of the amendment bill on 8 April.
In issuing its report, the committee expressed concern that the timelines for stakeholders were extremely tight, and noted the submissions were consistent in expressing the concern that there was no meaningful or accessible consultation process carried out during the development of the bill.
The committee itself also came under time pressure in delivering its pre-legislative scrutiny report. It made 64 recommendations in total, and it remains to be seen if its recommendations will be incorporated into the final amendment bill.
Legislative gaps
Aside from the obvious concern that the amendment bill has not yet been finalised and that there is no legislative certainty at this late stage, the Law Society has identified significant lacunae that exist in the legislation, which arise from the proposed implementation plan:
- Deprivation-of-liberty safeguards: the Society has noted that there will now be no part 13 to the 2015 act. Part 13 was intended to deal with deprivation-of-liberty safeguards. Currently, there is a statutory scheme, namely wardship, which provides deprivation-of-liberty safeguards to persons without capacity who are detained for their protection. The repeal of the wardship legislation without provision for an alternative statutory scheme for deprivation-of-liberty safeguards is a cause of great concern, and was raised in submissions presented to the committee.
- Cessation of wardship applications in advance of commencement of alternative legislative provisions: it is proposed that section 7(2) (which repeals the 1871 act) will take effect immediately on commencement of the 2015 act. Currently, applications in wardship take some three months to progress. Commencement of section 7(2) in tandem with the 2015 act means that the Office of the Wards of Court will not have sufficient time to progress applications that are received within a number of months of commencement of the 2015 act.
On learning that there would be no transitional provisions to enable applications to be progressed, the Law Society wrote to the relevant ministers and the committee on 16 March, recommending that appropriate provisions be put in place for an orderly transfer from the current wardship system to the new systems.
The Law Society strongly recommended that a phased implementation be put in place, so that the Office of Wards of Court can continue to progress and finish all applications for persons who lack capacity received in advance of commencement of the 2015 act. This would ensure that there was no gap during which the affairs of a person who might lack capacity could not be dealt with for their benefit.
It was noted that aspects of the proposed implementation plan could bring about unintended consequences that might cause undue hardship for families and carers, and deny access to justice for the most vulnerable in society.
Wardship applications
A notice was issued on 1 April by the Registrar of Wards of Court, stating that, in preparation for the commencement of the 2015 act, the President of the High Court has directed that the Office of Wards of Court will stop accepting new wardship applications under section 15 of the Lunacy Regulation (Ireland) Act 1871 from 22 April 2022.
As section 15 applications take in the region of three months to progress, it is understandable that no new applications can be accepted after 22 April 2022.
The notice advises that applications will still be accepted where there is a documented urgency and a requirement for specified court orders. These orders would typically be urgent treatment orders or urgent placement orders. The notice also confirms that all proceedings under an inquiry order will continue to be heard and listed before the court until commencement of the 2015 act.
This will inevitably result in a situation where some applications that have been lodged in advance of the 22 April deadline may not be heard by the court in advance of commencement of the 2015 act. This means that a fresh process under the 2015 act will need to be commenced. Quite apart from extending the time it will take to obtain reliefs for a person who has lost capacity, this will incur further legal costs and is a waste of court resources.
Judicial and court resources
There are approximately 2,500 wards of court, with applications being dealt with in the High Court. The President of the High Court and two other assigned High Court judges currently sit on a daily basis hearing wardship applications.
Circuit Court applications under the act will take place in nine Circuit Courts. It is anticipated that there will be multiple applications before the Circuit Court, as applications will be issue-specific and the numbers of capacity applications may increase tenfold. It is understood that there will be 1,200 applications to the Circuit Court in the initial stages of the commencement of the 2015 act.
It is also understood that no additional Circuit Court judicial resources are being made available on commencement of the 2015 act. When the act was first drafted, it was intended that six additional judges would be assigned to hear applications under the act – currently there are no proposals to increase Circuit Court judicial resources.
In addition, there will be a considerable burden on Circuit Court office staff in familiarisation with, and processing of, the new form of applications under the act. Due to the processing time involved, it is unlikely that applications will be heard before the Circuit Court until October 2022.
Difficult transition period
It is to be hoped that the Law Society’s recommendations will be carefully considered. They were offered to assist an orderly transition into a new era in legal capacity in the State. That transition will be significantly more difficult than necessary in the absence of a phased implementation to allow the Office of Wards of Court sufficient time to finish all applications received in advance of commencement of the act.
Without a phased implementation of the 2015 act, there will be a legislative gap, during which the affairs of a person who may lack capacity cannot be dealt with for their benefit. Practitioners will be in the invidious position of being approached for assistance during the legislative lacuna, and having to explain that they have no means by which to provide that assistance until such time as the 2015 act is commenced and, thereafter, an application can be made.
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Áine Hynes
Áine Hynes SC is chair of the Law Society’s Task Force on Mental Health and Capacity Law and a partner in St John Solicitors LLP, Dublin 7.