Linda has a special interest in issues affecting our ever growing older community and those with a learning disability. She is a founder member of Solicitors for the Elderly Ireland and has served as a Director of Age NI for 6 years.
At a STEP talk in December 2015, Linda presented a summary of the proposed new Mental Capacity Bill working its way through the Committee stage at Stormont.
There is much interest in this Bill, particularly as Northern Ireland has the fastest growing elderly population in the UK. Indeed, there is predicted to be a 60% increase in the over 65 age group in the next 15 years.
The Department of Health has indicated that most people in Northern Ireland will at some point in their life either lack mental capacity or come in contact with persons who lack capacity. This proposed legislation will therefore impact on the lives of most of us in the future in one way or another. Essentially, the Bill could affect the following people:
- Those who have a learning disability or mental illness
- Those who have suffered a stroke or acquired a brain injury from a traumatic accident
- Those with dementia or intermittent capacity
- Those who have diminished capacity through drink, drug or substance abuse
- Those with a desire to plan for the unexpected
In her talk for STEP, Linda looked at how this new legislation could essentially empower people in making decisions. The proposed legislation is complex but there are certain principles set out which will be fundamental to how the legislation will operate. These are that:
- A person is assumed to have capacity to make decisions unless it is decided otherwise.
- It cannot be concluded that a person is unable to make a decision unless all practicable help and support has been given without success.
- It cannot be concluded that a person is unable to make a particular decision because their decision appears unwise.
- It cannot be concluded that a person lacks capacity merely on the basis of their appearance, condition or behaviour.
If, having followed these principles, it is decided that a person does not have capacity to make decisions for themselves then the proposed legislation provides that any decision made on behalf of a person who lacks capacity must be in their best interests. The person intervening will be required to help and encourage the person without capacity to participate as fully as possible in deciding what would be in their best interests. In addition, any intervention on behalf of someone who is incapable must be carried out in a way that has the least amount of interference with their rights and freedoms.
Given that it is estimated that there are currently 197,000 carers in Northern Ireland who are likely to be making decisions for persons lacking capacity, many of us await with interest the outcome of this new Bill and it’s outworkings in our lives.
If you would like some further information or advice on any issues concerning capacity, please feel free to contact us on 028 9024 3901 or online using the contact us form.