Chrysalis

So where are we now?  The Joint Oireachtas Committee on Justice Equality and Defence has reported after seeking public and special interest consultations, the questions that now must be asked is have they nailed the ‘Capacity’ issue in relation to those with mental health problems or have they yet again missed an opportunity?

In order to start we need to know why capacity legislation is being discussed.  Ireland needs to ratify the UN Convention on the Rights of People with Disabilities (UNCRPD), and if we are to do so we need to introduce capacity legislation.  Mad Pride Ireland agrees with the ratification of the UNCRPD as well as the introduction of capacity legislation.  However, what we do not want to happen, but fear will, is that the capacity of those suffering emotional distress will be questioned and removed and will ensure the continued breach of human rights of those with emotional problems under the Mental Health Act 2001.

So what has the Joint Committee said in their report?  They are talking about assessing capacity and saying that “the bar should not be set too high” and that substituted decision-making should be a last resort.  This does not yet grasp the full implications of the UNCRPD.

The Committee has reiterated in its most recent concluding observations (on Peru) that substituted decision-making should be replaced by supported decision-making, which respects the person’s autonomy, will and preferences.  What we need to note here is the use of the phrase “replaced by” and not that it should still be available as a last resort, it is also worth noting that “autonomy” must be respected.

The report also talks about supports being voluntary, but then goes on to contradict itself by saying that ‘substituted decision-making’ could be a ‘last resort’.  It also discusses the possibilities of a tribunal that would decide on someone’s capacity, is it only me or are these measures by definition not voluntary.

So what do we in Mad Pride Ireland think about what this all means in the lives of those suffering emotional distress:

• Those with emotional distress could still be put under guardianship
• The idea that a person has to meet some qualifications imposed by society in order to legally take responsibility for his/her own decisions would still be in place, this will obviously discriminate against people who are labelled as ‘mad’
• In the context of mental health services, it would still be possible to impose forced treatment if doctors and a tribunal believe that the person does not meet qualifications (labelled as “capacity”) to make a decision about his/her own treatment.
• Experiences in the U.S. show the results could range from sympathetic tribunals that give some people the leeway to exercise autonomy and escape psychiatric torture, to rubber-stamping of psychiatric torture.

Mad Pride Ireland takes as its starting point that it is not possible to lose one’s legal capacity.  Legal capacity is the recognition given by a legal system to the agency and choice of individuals.  It is not a quantity to be measured but a right that all human beings have to consider ourselves as the final arbiter in our own lives, and to be recognized as such by others.

Madness may cause an individual to make poor decisions, life itself can and does cause people to make poor decisions, but what cannot be argued is that those with emotional problems have lost their decision making capacity.

We need to develop a service that will help users come to the best decision for them, the individual, while also respecting their decision to disagree.  This will require a sea change in thinking from you, our policy makers and from the service providers.  It will take courage of thought and conviction.  The easy route is to take a compromise position, tick the box for compliance with the UNCRPD and move on.  That would be a ‘poor decision’ and would lead me to ask have you the capacity to decide on the future treatment of those within the mental health services.

We will continue to lobby to have the rights of those with emotional problems recognized; we will continue to argue that you cannot legislate for someone with Alzheimer’s in the same manner as someone who is dealing with emotional distress.  Our fear is that the capacity legislation as proposed by the Joint Committee will allow the Mental Health Act 2001 to breach basic human rights, so the fight is now and the fight goes on log on to www.madprideireland.ie to see how you can help us.