There is no decision-making regime in Ireland to step into the breach if an adult with an intellectual disability lacks the capacity to make a decision for themselves, according to Ms Patricia Rickard-Clarke.
Ms Rickard-Clarke is a full-time commissioner with the Law Reform Commission (LRC), and working on its report on the legal capacity of people with intellectual disabilities.
"The option of making an application to have an adult with an intellectual disability made a ward of court is, in most cases, unsuitable," she said. But this may be appropriate where the person has been awarded damages for personal injuries involving mental impairment, where he or she inherited property that the person was unable to manage, or where the person required to be protected from harm. New thinking on the question of disability involved an emphasis on ability.
"[ A decision that] a person lacks capacity in one context does not mean that they won't have capacity in a different context. For example, an adult who does not have the capacity to enter into a car finance contract may have the capacity to consent to having and operating a small bank account," Ms Rickard-Clarke said.
Complex decision-making issues could arise in relation to consent to healthcare decisions, and capacity to enter into sexual relationships, she said at the seminar.
"The difficulty for doctors is that, outside of emergency situations, the treatment of adults without their consent is technically an assault. This may sometimes have the unfortunate result that an adult with an intellectual disability is not given the prompt medical attention which could be expected."
At the moment sex with a person suffering from a mental disability is a criminal offence, unless the two people are married. The Law Reform Commission had recommended that this should not be the case when the person concerned had the capacity to consent.
In its Consultation Paper on Law and the Elderly, the LRC had already recommended a new legal structure to permit forms of assisted and substitute guardianship for adults who lack the legal capacity to make decisions, she said. A personal guardian could be appointed to make decisions for a person in areas where they did not have the capacity to make them.
Ms Rickard-Clarke pointed out that a similar approach had been taken in Scotland and in England in their recent legislation on mental capacity. The LRC was currently preparing a further consultation paper dealing with the issue with regard to people with a decision-making disability.
The Disability Bill as presently drafted does not allow a person to refuse a needs assessment, Ms Ita Mangan BL told the seminar. Ms Mangan, author of a booklet on mental capacity for NAMHI, said the legislation should respect the presumption that the person with a disability has the capacity to be involved. If it was established that such capacity was limited or non-existent, then decisions would have to be made about the degree of involvement the person had.
There are no rules or guidelines on how a Disability Allowance should be spent, she said. It is often collected by parents, relatives or service-providers on the behalf of the person with the disability.