Phrases such as "idiot", "lunatic" and "of unsound mind" should be removed from all legislation dealing with the capacity of people with mental disabilities to make decisions, according to the Law Reform Commission. Carol Coulter, Legal Affairs Correspondent, reports.
New legislation should emphasise capacity rather than lack of capacity and should be functional, focusing on the specific decision to be made.
The commission is launching its consultation paper, Vulnerable Adults and the Law: Capacity, this morning.
It examines the existing law on the capacity of people with mental disabilities to make decisions that are legally binding and recommends that it be changed in line with contemporary thinking on human rights and disability.
It is seeking the views of interested parties on the question of the consent of people with mental disabilities to sexual relations.
Limitation on decision-making ability can arise due to intellectual disability, dementia, mental illness, acquired brain injury or the inability to communicate decisions.
People can be unable to make certain decisions, according to the commission, but capable of making others.
It cites a British case where a person with an intellectual disability was found capable of making a decision to marry but not capable of making a will.
The commission stresses that the fact that an adult has a partial or even complete lack of decision-making capacity does not entail a loss of constitutional rights, including the right to privacy and the right to be treated with dignity.
In the light of this thinking, the commission says new legislation should be enabling rather than restrictive in nature. It should be clear, transparent and accessible and should put in place an understanding of legal capacity that would apply in all situations.
It should contain a clear 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.
The commission recommends that an adult should not be regarded as unable to make a decision merely because they made a decision "which would ordinarily be regarded as imprudent".
If a person is found, under the legislation, to lack decision-making capacity, this should be subject to ongoing review.
On contracts, the commission recommends that it should be presumed the adult was capable of entering into the contract, unless it was proved otherwise. Where a contract is entered into that was later disputed, there should be a public guardian to which this could be referred.
Referring to the law relating to sexual relations with people with mental disabilities, the commission is seeking the views of interested parties on the reform of the Criminal Law (Sexual Offences) Act of 1993.
This makes it an offence to have sexual relations with a person suffering from an intellectual disability and the commission wants a discussion of whether this should be revised to examine whether they were capable or not of consent.
On the question of consent to medical procedures, the commission recommends that a code of practice be drawn up for all healthcare professionals, including nurses and dentists. Its proposed new capacity legislation should give the Minister for Health the power to appoint a working group on capacity to make healthcare decisions.
Referring specifically to the non-consensual sterilisation of people with limited decision-making ability, the commission recommends that this should require an application to court.