Judges to assess capacity of intellectually disabled witnesses

By Jennifer Hough

JUDGES will be given the power to assess whether a person with an intellectual disability has the "capacity" for decision-making, or to be a reliable witness in a court of law.  Under proposed capacity legislation, it is hoped that legal loopholes whereby people with an intellectual disability are often deemed "incapable" of making decisions, or giving evidence, will be closed.  The laws — dating back to the Lunacy Act of 1871 — create barriers for disabled people on a wide range of issues such as access to justice, medical treatment, control of money and the right to marry.  Submissions to the joint committee on Justice, Defence and Equality relating to the promised legislation must be received by Friday.  Campaigning group Inclusion Ireland said it receives many queries about problems arising from the lack of a modern legal framework.

"Under current law, parents, carers and service providers have no legal authority to take necessary decisions on behalf of adults with disabilities. Hardly a week goes by without this problem being raised by a parent, family member, professional or service provider and, more frequently, by the person themselves," the group’s submission states.  "The complete absence of any guidance on how to assess capacity for this group of people, who may not have capacity to make decisions, and/or may not be able to communicate their decision, means that decisions that need to be taken are sometimes not taken, or that decisions are taken that may involve an infringement of the person’s rights." 

Inclusion Ireland said decisions are often made for people because the family or service provider feels the person lacks decision-making capacity, without attempting to find out what that capacity may be.  "They may have a paternalistic view, based on the assumption that people with greater intellectual ability know better."  There is concern this view could continue, however, as judges who are assessing people will be relying on medical evidence and definitions.

In Britain, specialist judges are put in place to carry out this function, but here it is understood it will become a role of the high court.  The inadequacies of the law in serious issues such as abuse have been highlighted many times.  In one case, a 23-year-old woman, Laura Kelly, was prohibited from giving evidence about her alleged sexual assault by a judge who deemed she did not have the capacity to testify in court. Legislation has been signalled for some years and is required to ratify the UN Convention on the Rights of Persons with Disabilities.

This appeared in the printed version of the Irish Examiner Tuesday, August 16, 2011

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