The launch of the Law Reform Commission consultation paper on the legal capacity of vulnerable adults comes as the Oireachtas is debating the Disability Bill. It therefore adds another dimension to the ongoing debate about the rights of people with disabilities, and how they can contribute to decisions that are made concerning them.
The law has, up to now, taken an all-or-nothing view on the capacity of people with a mental disability to make decisions about their own affairs. Either they are adults under the law, and therefore capable of making such decisions, or they are "of unsound mind", and therefore incapable. This reflected the paternalistic and patronising attitude prevalent throughout society towards people with disabilities. The ultimate expression of this lies in the ward of court system, where a person is deemed unable to administer their "person and property", and decisions relating to both are made by what is known as a committee on their behalf.
Most of these decisions to make people wards of court are non-contentious, and concern people who have suffered serious brain injury or other disability. But being made a ward has serious implications for a person's rights and liberties. If that person was previously functioning freely in society it involves a fundamental alteration in status. A ward of court cannot enter into legal agreements, cannot marry, cannot leave the country without the permission of the court and can even be told where to live. A person is made a ward of court on the application of an "interested person", frequently a relative. This normally occurs when the person has considerable resources, and, in the opinion of the interested person, is unable to administer them.
The Law Reform Commission is proposing that this be replaced by a new guardianship system, as part of a fundamental rewriting of the law on capacity. This should make new rules for establishing a person's legal capacity, and focus on a person's ability to make decisions in their context. It should extend to decisions involving entering into personal and sexual relationships, it says.
This consultation paper is the second in a series of two that address the subject of vulnerable groups and the law. The first, a Consultation Paper on Law and the Elderly, was published in June 2003 and recommended the establishment of a new Office of the Public Guardian. It also recommended that personal guardians could be appointed to make decisions on behalf of adults who lack legal capacity in a particular area.
This is a consultation paper, and the commission is seeking submissions from interested parties. It will have to seek a balance between treating people with intellectual disabilities with dignity, and protecting them from exploitation or abuse by other adults. The debate on it should be part of an ongoing debate which focuses on allowing people to participate in decisions concerning them, rather than being the passive recipients of society's intermittent provision.