Ireland’s new Bill, Assisted Decision-Making (Capacity) Bill 2013, is an interesting read. There are many similarities between the Bill and Ontario’s Substitute Decisions Act, 1992 (SDA), but the dirt is in the differences; they differ in ways that reflect the changes in the theory and practice of capacity law since 1992. The following are a few examples.

Best Interests – this is a guiding principle of the SDA. By contrast, Ireland’s Bill intentionally avoids the use of that phrase. Some suggest this choice reflects concerns about the paternalistic interpretation of that principle by Irish Courts. Read more on Irish Law Blog

Supported Decision-Making – The SDA established a substitute decision-making framework. Ireland’s Bill does the same, but it also establishes a continuum of supported decision-making in the form of Assistance Agreements and co-decision makers. Both models provide support to the decision maker without usurping the authority of the grantor.

This difference between the SDA and Ireland’s Bill calls to mind some of the content of the Law Commission of Ontario’s recent Report on Older Adults. The LCO Report stressed the importance of fostering autonomy and independence and explored the possibility of supported decision-making models.

Ratification of the UN’s Convention of the Rights of Persons with Disabilities (CRPD) – A press release regarding the Bill from Ireland’s Minister for Justice, Equality and Defence makes reference to the need for law reform in the area of Ireland’s decision-making capacity in order to enable Ireland to ratify the CRPD. You can read the press release here.

This insight into the purpose behind Ireland’s Bill represents a key difference between these two pieces of legislation and the states that drafted them. The CRPD was not adopted by the UN until 1992, so it could not have influenced the SDA. Canada has already ratified the CRPD in 2010, but it did so with the following reservation:

“Canada recognises that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives. Canada declares its understanding that Article 12 permits supported and substitute decision-making arrangements in appropriate circumstances and in accordance with the law.

To the extent Article 12 may be interpreted as requiring the elimination of all substitute decision-making arrangements, Canada reserves the right to continue their use in appropriate circumstances and subject to appropriate and effective safeguards….”

Article 12 of the CRPD pertains to the provision of support to persons with disabilities in their exercise of legal capacity. You can read the full text of the CRPD by clicking here. You can read Canada’s reservation here.

Ireland’s Bill is not without its critics, but it does seem to reflect the future of capacity law in its continuum of supported decision making. It’s worth remembering that the committee that drafted the first version of the SDA was also concerned about paternalism, and took steps to ensure that vulnerable adults were assisted rather than overpowered. We blogged about this previously.

Perhaps future changes to the SDA will reflect the intentions of its first legislators as well as the present-day norms and standards discussed above.