For a fascinating perspective on our MCA 2005, we would urge you to read the Assisted DecisionMaking (Capacity) Bill that has just been published in Ireland.   It is the fruit of some extremely extensive debates, particularly as regards the creation of a regime that properly complies with the UN Convention on the Rights of Persons with Disabilities.    It is of particular interest in that:

  • It follows the Scottish model of requiring interventions to be justified on the basis of necessity rather than the MCA 2005 model of decision-making in the best interests of the incapacitated;
  • It provides express and detailed provision for assisted- and co-decision-making, to cater for gradations on the spectrum from full decisionmaking incapacity in respect of a particular • matter to total incapacity;
  • It seeks to place the authorisation of the deprivation of liberty within the scope of the Irish Mental Health legislation, rather than making provisions akin to those in Schedule A1 (it is, though, not clear from the Bill itself how deprivations of liberty in settings other than hospital settings are to be authorised);
  • (for the nerdy), it gives express statutory authority to the Explanatory Report upon the 2000 Hague Convention for purposes of interpretation of the cross-border provisions contained in the Bill (and includes the entirety of the Convention as a Schedule).

It will be very interesting to see both how the Bill fares in debate during its legislative passage, and the supporting materials that are produced in due course.    We would commend, though, the Bill to all those who are interested in thinking about what our legislation could look like, and it therefore comes at a timely point given the current scrutiny of the MCA 2005 by the House of Lords.