Introduction

In December 2015, the President of Ireland signed the Assisted Decision-Making (Capacity) Act 2015 (ADMCA) into law. This Act may be regarded as broadly progressive underpinned by empowerment/participative values and informed by the European Convention on Human Rights (ECHR) and by the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which Ireland signed in 2007 and ratified in March 2018. Although the operational body for the ADMCA – the Decision Support Service (DSS) – was established in October 2016, the substantive provisions of the ADMCA came into force in April 2023. Prior to this, the applicable legislative framework in Ireland has been the Lunacy Regulation (Ireland) Act 1871 (1871 Act). Thus, there are two profoundly contrasting models, one of which has recently been democratically endorsed and is grounded in human rights norms and the other of which is 150 years old and clearly incompatible with human rights norms. Yet, it is the latter which (still) constitutes the applicable legislative framework.

As Kong et al have identified, legislative ‘ethos’ is only one element of the normative framework underpinning the operation of capacity law. Broader legal norms are implicated as are the values of individual judges. Kong et al describe the first of these as ‘internal’ (to the law) and the second as ‘external’ (sociocultural, moral and political norms). While the first fits comfortably within traditional doctrinal analysis, the latter raises more difficult questions. The traditional view of the task of judging emphasised and elevated the judge as an objective arbiter, shorn of personal characteristics, applying the law. This view has been challenged from various perspectives. These include empirical work on judicial biases; feminist interrogations of gendered values in judgments; and judges’ own extrajudicial perspectives on the task of judging. Sir Mark Hedley's thoughtful reflections on more than 30 years as a judicial officer, working primarily in family and capacity law in England and Wales are especially helpful for the discussion in this chapter. Sir Mark is clear that decisions in these fields are ‘value-laden and every outcome will have involved a value judgement made by the decision-maker’.