Legislative Framework & Relevant Case Law CAPACITY Legislative Framework & Relevant Case Law

Overview General Principles Current Legal Framework Definition of Capacity Capacity Model Case Law Conclusion

General Principles Consent to Treatment Articles of the Constitution 40.1 “All citizens shall as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function” 40.3.1 “The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen” 40.3.2 “The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen” Mental Health Act 2001 – treatment in “best interests”

Current Legal Framework * Advance Health Care Directives: “legally recognised but as yet no statutory framework” “Heads of Bill published February 2014” Enduring Powers of Attorney: “Powers of Attorney Act 1996 to be replaced by provisions in the Assisted Decision-Making (Capacity) Bill 2013 Assisted Decision Making (Capacity) Bill “ Guiding Principles”

Definition of Capacity Ireland - Section 3 of Assisted Decision Making (Capacity) Bill * persons capacity to be construed functionally * ability to understand the nature and consequences of a decision to be made by a person in the context of available choices at the time the decision has to be made * lack of capacity – unable to understand information relevant to decision, retain that information, use or weigh that information as part of the process of making the decision or to communicate decision by any means including third party UK - Mental Capacity Act 2005 * Person must be assumed to have capacity unless it is established that he/she lacks capacity

Capacity Model Functional Status Outcome “ conceives of capacity as both time specific and decision specific” Status “Determination of capacity is based on characteristics of the individual” Outcome “Determination of capacity is based on an assessment of the consequences of the decision”

Relevant Case Law Ireland: * In Re A (Ward of Court) No. 2, 1996 2 IR 79 * Fitzpatrick & Ryan –v- FK & Attorney General (2009) 2 IR 7 * Fleming –v- Ireland (2013) IESC 19 * HSE –v- R - October 2014 UK * Re C (1994) 1 WLR 290 (relied on by Laffoy, J in Fitzpatrick) * P & Q & P (2014) UKSC 19

Conclusion Baxter –v- Montana (2009) “ Dignity defines what it means to be human. It defines the depth of individual autonomy through life and most certainly at death. Usurping a mentally competent, incurably ill individuals ability to make end of life decisions and forcing that person against his/her will to suffer a prolonged and excruciating deterioration is, at its core, a blatant and untenable violation of the persons fundamental right of human dignity”