2015, and was prompted by the recent legal challenge in V. v Minister for Health and Ors.404 This case concerned a man with an intellectual disability, who was prevented from marrying his fiancée following an application to the High Court to have V. made a ward of the court.405 The automatic bar on marriage has been replaced by a capacity-based assessment under the 2015 Act. Changes introduced by the Act The essential idea of assisted decision making is that persons with disabilities have access to assistance in their decision making, allowing them to participate in society on an equal basis.406 In the following section, the pillars of the new system of decision-making capacity will be outlined. Assessment of Capacity under the Act Legal capacity can be described as the ‘law’s recognition of the validity of a person’s decisions.’407 Under the Act, capacity will be assessed functionally, marking a move away from status-based assessment. The status approach provided for inflexible, all-or-nothing assessments, where a person who lacked capacity to make a specific decision was held to be incapable of making any decisions at all. A functional assessment, on the other hand, is time-specific and issue-specific — if a person is found to lack capacity in one matter, this will not mean that they will lack decision-making capacity in all matters. The functional approach provides for a rights-based approach rather than one based on medical diagnostics. Furthermore, this approach also accounts for fluctuations in capacity and allows for situations where loss of capacity is temporary or partial. By virtue of section 3(6) of The Act,
404
Irish Human Rights and Equality Commission, ‘Human Rights and Equality Commission Granted Leave to Appear as Amicus Curiae in Disability Rights Case’ (18 November 2020) < https://www.ihrec.ie/human-rightsand-equality-commission-granted-leave-to-appear-as-amicus-curiae-in-disability-rights-case/> accessed 17 January 2022. 405 Mary Carolan, ‘Repeal of 200-year-old law preventing wards of court from marrying is welcomed’ The Irish Times (Dublin, 2 February 2021). 406 Ruth Usher and Tadhg Stapleton, ‘Overview of the Assisted Decision-Making (Capacity) Act 2015: Implications and opportunities for occupational therapy’ (2018) 46 (2) Irish Journal of Occupational Therapy 134. 407 The National Safeguarding Committee, ‘Review of current practice in the use of wardship for adults in Ireland’ (2017) 45 <https://www.sageadvocacy.ie/media/1153/review-of-current-practice-in-the-use-ofwardship_dec-2017.pdf> accessed 16 November 2021.
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