Disability and Mental Health Law, Carers Law & Assisted Decision Making
As of April 2023, the Assisted Decision-Making (Capacity) Act 2015 (“the Act”) has now commenced and brings with it several changes to the landscape of Disability and Mental Health Law in Ireland.
The Act transposes the UN Convention on the Rights of Persons with Disabilities (the “Convention an international treaty that identifies the rights of persons with disabilities as well as the obligations on parties to the Convention to promote, protect and ensure those rights. Ireland was one of the first countries to sign the Convention in 2007, and the time taken for it to become enforceable law in this jurisdiction is a testament to its wide scope
From an ideological perspective, the Act moves away from the paternalistic “best interests” framework, towards a functional test of capacity and a model which seeks to broaden capacity for those with decision-making issues or impairments.
KOD Lyons works on behalf of individuals and together with non-governmental organisations in promoting the rights of persons with disabilities in Ireland, by providing effective legal advice and representation in a number of different arenas.
We have worked closely with organisations and support groups including Sage Advocacy, a support group for older people, Down Syndrome Ireland, the DCA Warriors and AsIAm in advancing the rights and interests of children and adults with additional needs and their families and carers.
We recognise the importance of internationally recognised concepts in the area of disability law and policy as set out in the Act and the Convention including:
- dignity and autonomy and the legal capacity of the person;
- the right to independent living;
- supported decision making for persons with disability;
- the right of such persons and their families not to be discriminated against on the basis of disability
- Self-determination and the dignity of risk.
We provide advice and representation in all areas impacted by the commencement of the new Act:
Assisted Decision-Making
The Act makes provision for three new types of assisted decision-making arrangements:
- decision-making assistance agreement;
- co-decision-making agreement; and
- decision-making representation order.
KOD Lyons can provide advice in relation to the drafting, execution, and (where appropriate) registration of these agreements and orders, which give legal standing to people and agencies who can provide assistance in decision-making to relevant people and to enlarge capacity.
Advanced Healthcare Directives:
The Act makes provision for the formal recognition of Advanced Healthcare Directives, whereby a person can make provision for their wish to refuse certain medical treatment in the future at a time when they no longer have capacity to make a decision regarding this treatment. An Advanced Healthcare Directive can be a useful legal vehicle in end of life planning, where a person wants to ensure that their religious or ideological beliefs regarding a certain form of medical treatment are respected, or where a person suffers from a mental health condition whereby they experience periods of mania or psychosis where their capacity is questioned and wish to set out their wishes for their treatment during these periods.
Discharge from Wardship:
As part of the commencement of the Act, all Wards of Court must be discharged by the High Court or the Court that took them into wardship initially, in favour of an arrangement under the new Act. All Wards must be discharged by 26th April 2026. As part of this process the High Court will be examining the appropriate assisted decision-making needs in respect of current wards of court.
We can provide advice to outgoing wards themselves and/or their current support people and agencies, and to incoming assisted decision-making representatives.
We further provide advice and representation in a number of areas of the law where people who have a disability or a mental health condition, can be adversely affected, including:
Employment law
We represent employers and employees before the Employment Appeals Tribunal with regard to disability discrimination cases. We also advise employers on their reasonable accommodation obligations to prospective employees with disabilities.
To read further about the services we provide in this area
Housing law
We act on behalf of persons with disabilities and their families both in terms of advocating on behalf of and engaging with local authorities and local councils to ensure adequate accommodation for persons with disabilities and in accessing grants and supports to ensure independent community living.
Child Welfare
We have a specialist Childrens’ Court and Childcare Team representing persons with disabilities before the District Court in child care proceedings with the Health Service Executive. KOD Lyons can also provide information and advice to individuals and organisations on the convention on the rights of persons with disabilities which remains to be ratified in Ireland.
We act on behalf of families directly affected by a late diagnosis in their child’s care by service providers and campaign on a continuous basis to ensure that appropriate and timely services for children and their families are provided for.
Domiciliary and Care Allowances
We have acted in a large number of successful challenges to decisions restricting the entitlements and rights of parents and carers. We work closely with a number of organisations in the area and are regarded as one of Ireland’s leading firms in this area. We have challenged the provisions of the Disability Act 2005 and the failure of the HSE to deliver assessments of need in compliance with their statutory requirements.
