10th World Conference on Elder Abuse
and WEAAD 2015
Lead-Up
Legislative Changes for Safeguarding
Older People
Patricia T Rickard-Clarke
22 April 2015
Overview
 Why Ireland needs new Legislative Provisions
 Assisted Decision-Making (Capacity) Bill 2013
 Definition of Capacity and how it is to be assessed
 Guiding Principles in proposed legislation
 Decision-Making/Interveners
 Planning Ahead
 Enduring Powers of attorney
 Advance Healthcare Directives
 Deprivation of Liberty
 Finance
 Conclusion
Existing Structures
 Definition of Capacity – not defined in legislation so different
approaches apply
 Presumption of Capacity – at common law
 Ignored in practice
 Next of kin
 No general authority
 No emphasis on person’s individual rights and wishes
 Enduring Power of Attorney
 No provision for health care decisions
 No proper reporting requirement when registered
 Advance Healthcare directives
 Legally valid and recognised
 But no statutory provision/legal uncertainty
 Right to privacy and confidentiality
 Ignored in practice
Existing Structures
 Wards of Court
 Lunacy Regulations (Ireland) Act 1871
 Status approach to capacity
 Mainly concerned with property matters
 No participation by person subject of application
 No review
 Deprivation of Liberty/Restraint
 Come within provisions of ECHR but
 No clear legal procedural rules
 Over emphasis on risk prevention v benefits on right to choose/happiness
 Right to private property
 Issue of financial abuse not addressed
 Cultural ‘right to inheritance’
National and International Obligations
 Constitution of Ireland
 The European Convention on Human Rights
 Council of Europe Recommendation (99)4 of the Committee
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of Ministers to Member States on Principles Concerning the
Legal Protection of Incapable Adults February 1999
UN Universal Declaration on Bioethics and Human Rights
2005
UN Convention on the Rights of Persons with Disabilities
2006 (signed by Ireland 2007)
Council of Europe Recommendation on Principles
concerning Powers of Attorney and Advance Directives for
Incapacity September 2009
Council of Europe Recommendation on the Promotion of
Human Rights of Older Persons (2014)
Legislative Framework
 Capacity – Lunacy Regulations (Ireland) Act 1871 to be replaced by
Assisted Decision-Making (Capacity) Act
 Detailed Bill published July 2013 – capacity to be construed functionally
 Advance Healthcare Directives legally recognised but as yet no
statutory framework – legislation now being enacted
 Heads of Bill published February 2014 – to be incorporated in to the Assisted
Decision-Making (Capacity) Act
 Enduring Power of Attorney – Powers of Attorney Act 1996
includes authority for ‘property + affairs’, personal care but not for
healthcare decisions
 Details in Assisted Decision-Making (Capacity) Bill published July 2013 – to
include healthcare decisions
Purpose of the Legislation
 To promote and protect the right human rights which include
right to inherent dignity, right to privacy, bodily integrity, selfdetermination and autonomy – these rights must be respected
 To ensure that all persons are treated on an equal basis with
others. People with disabilities have rights equal to all others
 To ensure that any necessary intervention that is necessary to
maximise a person’s decision-making capacity must minimise
restriction on a person’s rights
 To ensure that all persons’ right to consent to and to refuse
medical treatment is fully respected
 To ensure that the principle of autonomy and self-determination
operates in the wider legal and ethical setting and for all
professions
Definition of Capacity
 A person’s decision-making capacity is to be construed
functionally
 Capacity - 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 (allows for fluctuations in capacity)
(KK case – no blank canvas)
 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 (Sharma case)
 or to communicate decision by any means including with
the assistance of a third party
How is capacity to be assessed?
 Capacity – Person is not to be regarded as unable to
understand information relevant to decision if they are able
to understand an explanation of it given in a manner
appropriate to circumstances.
The fact that a person is able to retain information for
short period only does not prevent him/her from being
regarded as having capacity to make the decision
 Information relevant to decision includes - reasonable
foreseeable consequences of each of the available choices at
the time the decision is made or failing to made decision
 Question as to whether a person lacks capacity shall be
decided on balance of probabilities – civil law standard
Guiding Principles
 Principles shall apply for the purposes of an intervention
(before and during any intervention in respect of a relevant
person) and the intervener shall give effect to the principles:
 Presumption of capacity unless the contrary is shown
 Relevant person shall not be considered as unable to make a
decision unless all relevant steps taken, without success, to
help him or her to do so.
 Making an unwise decision is not indicative of being unable to
make a decision (FK case)
 There shall be no intervention unless it is necessary to do so
having regard to the individual circumstances of relevant
person
Guiding Principles (continued)
 An Intervention shall be in a manner that
 Minimises the restriction of relevant person’s rights
 Minimises the restriction of freedom of action and
 Has regard to the need to respect the right of the relevant person to his or
her dignity, bodily integrity, privacy and autonomy
 Any Intervener shall
 Permit, encourage and facilitate the relevant person to participate or to
improve his or her ability to participate
 Give effect, in so far as practicable, to the past and present will and
preferences, in so far as reasonably ascertainable
 Take into account the beliefs and values of the relevant person
 Take into account any other factors which the person would be likely to
consider if able to do so
Decision-Making/Interveners
Planning done in advance (personal appointments):
 EPA – attorney has authority
 AHD – healthcare representative has authority
No pre-planning done:
 Decision-Making Assistant (personal appointment)
 Person has capacity but needs assistance
 Co-Decision-Maker (personal appointment with oversight)
 Person does not have capacity but may be able to decide if had
assistance
 Decision-Making Representative (court appointment)
 Person does not have capacity to decide
 Court (declarations, interim orders, reviews + expert reports)
Existing Wards of Court
 Review of assessment of capacity
 Discharged /appropriate order/s made
 Transferred to new system/appropriate order/s made
 Application for review
 Relevant person
 Another person who has an interest in the welfare of ward
 Period in which review must be completed
 Within a 3 year period from date of coming into effect
Decision-Making: Planning Ahead
 Tools (right of self determination and autonomy – Council
of Europe Recommendation 2009)
 Enduring Power of Attorney
 Advance Healthcare Directive
’Think Ahead’
 If no pre-planning done the
 Process outlined in Decision-Making (Capacity) Act
 Not mutually exclusive
 Will and preferences/beliefs and values
Enduring Power of Attorney
 Current – Powers of Attorney Act 1996
 There are formalities at time of execution to ensure EPA is
validly executed but gaps on safeguarding/abuse
 Does not currently provide for healthcare decisions
 Issue of gifts
 Wide open to abuse
 Opportunity to trigger early inheritance
 Post registration (when EPA comes into effect) no adequate
reporting requirements by Attorney
 Cultural deficit
 As to possible limitations on power – no questions asked
 As to reporting abuse
 Institutional deficits
Enduring Power of Attorney
 Donor (person making the EPA) executes a formal document
creating an EPA stating he/she intends EPA to come into
effect at any subsequent time when he/she lacks capacity
or may shortly lack capacity
 Appoints an Attorney/s
 To look after his/her personal welfare (which will now include
healthcare matters) *** NEW
 To manage his/her property and affairs
 Authority both to look after his/her personal welfare and
capacity to manage his/her property and affairs
 The legislation sets out the formalities that must be complied
with to execute a valid EPA
Formalities for EPA
 Prescribed form for an EPA
 Statement by donor that understands the effect of creating an EPA
 Legal practitioner must certify that satisfied that donor understood the effect
of making EPA and no reason to believe that that the document is being
executed as a result of fraud or undue pressure
 [Medical practitioner], must state that in his or her opinion the donor had
capacity, with assistance of explanation as may have been given, that donor
understands the effect of creating the EPA
 Attorney must sign to confirm that he/she understands obligations
 Suitable person – extremely important – does not have to be a family
member
 Notice must be served on specified people (to include family
member)
What additional safeguards in EPAs?
 General principles apply to EPAs – participation by donor in
so far as possible***NEW
 Suitable person
 Class for disqualification expanded – eg barring order made***
 Reporting requirements***NEW
 Attorney must prepare and submit periodic reports
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On performance of functions
Include details of all expenses and remuneration paid or reimbursed
 Gifts *** MORE
 Undue influence *** NEW
 At time of execution further safeguards
 Notices at this stage
Registration of EPA
 To come into effect the EPA must be registered
 Registration in Office of Decision Support Service ***
 More scrutiny at this stage ***
 DSS can refer matter to court ***
 Application by attorney/s
 Assessment of capacity
 Donor is notified of application
Operation of EPA
 EPA must be registered with Decision Support Service
 Copy of Registered EPA can now be obtained***NEW
 Ensure Attorney/s has/have authority to make specific
decision
 Ensure will + preferences/beliefs + values of individual are
ascertained where possible (where EPA registered)***NEW
 DSS have educational role ***NEW
 The Legislation will give effect to the Hague Convention on
the International Protection of Adults to provide for the
recognition of ‘Protective Measures’ ***NEW
Advance Healthcare Directives
Consent to Treatment
 Legal Principle
 Person has a right to consent to and to refuse medical
treatment
 Capacity to consent to and refuse medical treatment

Informed Decision-Making
 Legal Capacity – rights equal to all others
 Person whose decision-making capacity is at issue still has
the legal right to consent to and refuse medical treatment
 May not have the decision-making capacity to do so but has
made an AHD – if valid must be followed
Difficulties
 Legally valid and recognised by the courts but no statutory
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framework
Uncertainty in practice as to legal status
In practice – legal rights of people who lack capacity are not
respected
Confusion as to what exactly an AHDirective is – what can be
included and what is not medical treatment
Confusion as to the boundaries – not the same as:
 Assisted Suicide
 Euthanasia
What is an AHD?
 An advance healthcare directive: means an advance
written expression of will and preferences made by a
person with capacity, …..concerning treatment decisions
that may arise in the event that the person subsequently
loses capacity
 Purpose: to promote autonomy of person in relation to
their treatment choices
 To provide healthcare professionals with important
information about person’s choices, beliefs and values
 Made by a person with capacity
 To be put into effect only when person lacks capacity
Purpose of Legislation
 To promote the autonomy of persons in relation to their
treatment choices
 To enable persons to be treated according to their will
and preferences (beliefs and values)
 To provide healthcare professionals with important
information about persons and their choices in relation to
treatment
Additional Guiding Principles for AHDs
 Presumed to have capacity unless there is evidence to the
contrary
 An adult with capacity is entitled to refuse treatment for
any reason
 Can refuse for religious reasons
 Even where it appears to be unwise or
 not based on sound medical principles
 even where refusal may result in death
Treatment Refusal
 Treatment Refusal expressed in a valid AHD is:
 as effective as if made contemporaneously by person when
he or she had capacity to make decision
 Legally binding and must be followed (civil, criminal or
statutory liability)
 AHD refusing life sustaining treatment
 must be verified by a written statement by the person
making the AHD to the effect that the directive is to apply
to that treatment even if his or her life is at risk
 Cannot refuse basic care
 AHD is not applicable to the administration of basic care
Treatment Request
 A person can indicate what treatments they would wish to
have in the future but such requests will not be legally
binding
 A treatment request may not be clinically indicated or
feasible
 However, treatment requests will be taken into account and
Code of Practice will state that request should be taken into
account where possible
Boundaries
 New Legislation will not affect Criminal Law on:
 Euthanasia
 Assisted Suicide
 Basic Care
 Cannot refuse in a AHD (it is not medical treatment)
 Basic Care includes but is not limited to warmth, shelter,
oral nutrition and oral hydration and hygiene measures
Patient Designated Healthcare
Representative
 Maker of Advance Healthcare Directive can nominate
another named person as Patient-Designated Healthcare
Representative
 Maker of an AHD may confer on his or her Patient-
Designated Healthcare Representative
 Power limited to ensuring that the terms of the AHD are carried out
 A General Power to consent to or refuse treatment, up to and including
life-sustaining treatment
Liability
 Failure to comply with the terms of a valid and
applicable Advance Healthcare Directive will give rise
to:
 civil and criminal liability for breach of common law duty or
 statutory duty may arise
 Conscientious objections
 Pichon and Sajous v France (ECHR No49853/99)
 Conscientious objections remains a limited right derived from religious
freedom that cannot lead to the restriction of the rights and freedoms
of another person
Deprivation of Liberty
European Convention of Human Rights
 Article 5
 Everyone has the right to liberty and security of person. No
one shall be deprived of his liberty save ……in accordance
with a procedure prescribed by law – exceptions (Article
5.1)
 Article 3
 No one shall be subject to …inhuman or degrading
treatment …
 This is an absolute right
 Article 8
 Everyone has the right to respect for his private and family
life
European Convention on Human
Rights Act 2003
 ECHR incorporated into Irish law
 Irish Courts must now interpret Irish law in a way which gives
effect to the State’s obligations under the ECHR regardless of
whether legislation pre or post 2003
 Every organ of the State must perform its functions in a manner
compatible with the State’s obligations under the ECHR
 Judicial Notice must be taken of:
 Any declaration, decision, advisory opinion or judgment of
the European Court of Human Rights
 Any decision or opinion of the European Commission of
Human Rights
 Any decision of the Committee of Minister of the Council of
Europe
Deprivation of Liberty
UN Convention on Rights of Persons with Disabilities
 Article 14
 State Parties shall ensure that persons with disabilities on and
equal basis with others
(a) Enjoy the right to liberty and security of person
 (b) Are not deprived of their liberty unlawfully or arbitrarily, and that
any deprivation of liberty, is in conformity with the law, and that the
existence of a disability shall in no case justify a deprivation of liberty
UK Supreme Court (following decisions of European Court): there are two key
questions (the so-called ‘acid test’) to be answered when a person lacks the
mental capacity to consent to, or refuse suggested arrangements for, care or
treatment that is thought to be in their best interests:
 Is the person not free to leave? and
 Is the person subject to continuous supervision and control?
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If the answer to both questions is ‘yes’, then the person is deprived
of liberty.
Deprivation of Liberty/Restraint
 Restraint free environment
 Ireland: In relation to mental incapacity - DoL
principles and safeguards to be clarified in the
Assisted Decision-Making (Capacity) Act
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Currently following national policy guidelines based on
Constitution, ECHR and UNCRPD
Right to have property protected
 Joint Account - Purpose of putting into joint names
 Is it a joint account from outset (example husband/wife)
with intention of joint ownership
 Is it put into joint names for convenience (agency
arrangement which comes to an end when incapacity)
 State Pension
 Agency Arrangement
 Requirement for bank account with name of agent added
 Patient’s private property account (Ownership)
 The Constitution, in protecting property rights, does not encompass only
property rights which are of great value. It protects such rights even
when they are of modest value and in particular, as in this case, where
the persons affected are among the more vulnerable sections of society
and might more readily be exposed to the risk of unjust attack. (SC 2004)
Gifts/Improvident Bargains
 Rights and obligations
 Nobody has a right to inherit
 Business/Farm – arrangement
 Future Needs
 Capacity but vulnerable/dependent
 Fair Deal Scheme
 Abuse
 Undue influence
Financial Issues
 Consumer Protection Code 2012
 definition of ‘vulnerable consumer’
 Law Society Regulations SI No375/2012
 Solicitors (Professional Practice, Conduct + Discipline –
Conveyancing Conflict of Interest) Regulations 2012
 Joint Accounts?????/Agency/Clear Intention
 Assisted Decision-Making (Capacity) Bill 2013
Conclusion - Legislation
 Offence – ‘persons’ who ill-treat or neglect
 Interface between mental capacity/mental health
 Clinical Trials
 Research
 Chemical Restraint
Timetable for enactment
 To be considered by the Oireachtas Committee in May
2015
 To be enacted in 2015
Thank You
 Third Age SAGE
 SAGE Support and Advocacy for Older People
 Sage www.sage.thirdageireland.ie
 Irish Hospice Foundation – Forum for End of Life
 Think Ahead project
 Think Ahead form www.thinkahead.ie