Law Reform Commission Research Articles

Recent developments regarding South African common and customary law of succession

This article will concentrate on the development in the common law ofsuccession and administration of estates versus the customary law ofsuccession and inheritance as well as the winding up of estates pursuant toconstitutional tendencies, case law, and statutory reform over the last tenyears. The principles of customary law of succession and inheritance havebecome a contentious issue since the commencement of the Constitution and Bill of Rights which provide for a human rights dispensation in South Africa. As a pluralistic legal system was retained, the inevitable conflict between the principles of customary law of succession and the Constitution soon came to the fore. Although the South African Law Reform Commission reported on this issue and submitted their recommendations to the Minister of Justice and Constitutional Development, the report was never formally published. Aspects of intestate succession and the administration of estates of deceased blacks were challenged in court on constitutional grounds. This eventually lead to a number of principles of customary law being declared unconstitutional, and consequently invalid, by the Courts who had no choice but to provide relief until such time as the legislature enacted a lasting solution. As far as the intestate succession is concerned, the Intestate Succession Act 81 of 1987 was extended to all persons in South Africa, including those adhering to a system ofcustomary law. No distinction will, for purposes of succession, be made infuture between legitimate and illegitimate children, between a first born son and other siblings or between men and women. Notwithstanding several court judgments in this regard, the Intestate Succession Act has not been amended by the Legislature as yet. As far as the historical discrepancy in the winding up and administration of estates is concerned, all estates, including intestate estates of black persons that have to devolve under customary law, in the future will be administered by the Master. Magistrates no longer will be responsible for supervising and administering customary estates.

Unlocking IP to Stimulate Australian Innovation: An Issues Paper

This is a submission to the Review of the National Innovation System undertaken by an expert panel chaired by Dr Terry Cutler, for the purpose of preparing reports to Australia's Minister for Innovation, Industry, Science and Research. A Green Paper responding to the submissions is to be presented to the Minister by 31 July 2008. 'Public rights' in intellectual goods (the broad usage of 'the public domain'), are increasingly important as a driver of innovation in information economies. This submission examines ten areas where changes to strengthen or protect Australia's copyright public domain may be desirable to encourage innovation. They are intended to be areas where change is possible within the constraints of our Constitution and international obligations, rather than impractical areas such as changes to the copyright term. The ten areas are: The scope for further exceptions to copyright; Legal deposit's role in the public domain; Finding missing rights-holder (orphan works); Enabling open content licensing to thrive; Maximising the value of free and open source software (FOSS); Moving toward open standards; Coexistence of open content and compulsory licences; Re-usable government works; Public rights in publicly-funded research; and Indigenous culture's relationship to the public domain. Some of the main issues and problems identified from consideration of these ten areas (from over 100 questions raised) are: Whether we should a adopt a more flexible 'fair use' copyright exception, very similar to that in the USA?; Whether steps should be taken to stop contractual provisions over-riding copyright exceptions?; Whether legal deposit schemes should be re-considered to maximise the contribution they can make to the public domain?; How can we stop technological protection measures (TPMs) subverting legal deposit schemes?; How can we best combine 'active' and 'passive' modes to ensure the best legal deposit scheme for audio-visual and digital materials?; What can we do to more effectively find missing rights-holders?; What rights to use 'orphan works' should be created, and should authors be compensated when found?; Whether amendments to the Copyright Act could be valuable to strengthen the enforceability open content licences?; Whether the Act should contain provisions enabling public domain dedications?; Whether the Act could also give more support to the enforceability of FOSS licences?; Whether Australian government practices are giving sufficient support to FOSS licensing or open standards?; Whether members of collecting societies need stronger rights to exempt their works from collecting society operations?; Are collecting societies charging for the public's use of works in the public domain (including open content works)?; In what types of works should Crown copyright be abolished?; What licences, seals or other practices should Australian governments adopt to ensure greater re-use of government-created works?; Does the Copyright Act need to give greater protection to University republication of government-funded research?; Do current policies of Australian research funding bodies have strong enough requirements for public accessibility to publicly-funded research?; How can we best ensure that the special problems of the relationship between indigenous culture and the public domain receive an appropriate response in Australia? Through the discussion of these areas, interlocking themes emerge, including the need to make ownership of works easier to ascertain, and to make use of works easier when owners cannot be found; how changes to copyright law might assist voluntary actions by authors to expand the public domain; how some Australian institutions may need more protection in their uses of works; and how governments could lead by example in relation to government-produced works, government-funded academic research, and government engagement with open source software and open standards. The submission argues that these issues are so central to the question of innovation in Australia that the Innovation Review should recommend that the Australian Law Reform Commission should be given a reference to review the role of public rights in Australia's copyright law (or preferably in all intellectual property laws). Such a review with the public domain as the focus of enquiry has never taken place in Australia, or perhaps anywhere in the world. Australia would benefit from a considered review that focuses on public rights, and on what balance between public rights and proprietary rights would maximise the national interest. This submission is in the form of an 'Issues Paper': it presents over 100 questions which it would be valuable for such a law reform review to answer, and suggests why they are important to Australia's innovative capacity. It does not propose particular reforms. Researchers from the Unlocking IP Project intend to publish a further Discussion Paper in late 2008 which will discuss options for reform on all of these issues, followed by a Report in 2009 which will state our views on what reforms are desirable.

Mental Health Care In America: Not Yet Good Enough

From the Editor-In-Chief Health AffairsVol. 28, No. 3: Mental Health Care: Better, Not Best Mental Health Care In America: Not Yet Good EnoughSusan DentzerPUBLISHED:May/June 2009Free Accesshttps://doi.org/10.1377/hlthaff.28.3.635AboutSectionsView PDFPermissions ShareShare onFacebookTwitterLinked InRedditEmail ToolsAdd to favoritesDownload CitationsTrack CitationsPermissionsDownload Exhibits TOPICSMental healthPharmaceuticalsSocial Security Disability Insurance R ichard frank and Sherry Glied chose the title Better But Not Well for their seminal 2006 work on U.S. mental health care since 1950. Better But Not Good Enough would be an apt title for this thematic issue of Health Affairs, published with the support of the MacArthur Foundation. The United States has clearly crossed a watershed in the past year, with passage of federal parity legislation finally burying the nonscientific distinction between “mental” and “physical” illness. But to say there’s been progress in understanding these brain disorders—not to mention in the care provided those suffering from them—doesn’t negate the fact that there’s still much farther to go. Consider how the science of mental illness has evolved since Health Affairs ’ first MacArthur-funded section on the subject in 1990. Among myriad discoveries made since then is that roughly 80 percent of the genes expressed elsewhere in the human body are also expressed in the brain. That helps explain the fact that the chemical compound serotonin has wildly different bodily functions—serving, for example, as a brain neurotransmitter as well as a key substance in the blood, liver, and gastrointestinal tract. Yet while we know that conditions like depression and anxiety are linked to disruptions in the brain’s serotonin pathways, we still have no firm understanding of how selective serotonin reuptake inhibitors (SSRIs) like Prozac really work. Needless to say, any interaction between brain serotonin and serotonin in the stomach remains beyond our comprehension. So in the meantime, our scientific understanding lacking, we medicate the depressed with SSRIs and other drugs and give antipsychotics to those with schizophrenia. We’re gratified when the drugs work for many patients, as well they do. But as the papers in this volume make clear, we are also flummoxed in sorting out science from pseudoscience, or even putting to use the evidence we have before we get even better data. This is true throughout health care, but the anomalies seem truly devastating in mental health care.Take the mounting evidence of the useful role of prevention and early intervention—probably employed even less in mental health care than elsewhere. In this issue’s Report from the Field, writer Steve Bogira quotes Chicago mental health clinic head Dr. Carl Bell as saying he feels as if he’s in the “iron lung business,” providing care that is increasingly out of step with science. This lag is compounded by the fact that mental health treatment, especially for lower-income populations, is still a low-priority societal activity—often brought into focus only amid terrible tragedy. We now know that the April 2007 shootings at Virginia Tech were preceded two years earlier by an episode in which the shooter, Seung-Hui Cho, was ordered by a Virginia special justice to seek outpatient mental health treatment that he never got. It’s therefore dismaying to read of one subsequent finding by the state’s mental health law reform commission—that about half of those who were evaluated for emergency services by the state’s community service agencies were people much like Cho, who weren’t currently in treatment.Clearly, well beyond implementation of parity laws, much remains to be done to improve both treatment and quality of life for the mentally ill. Robert Drake and colleagues focus on Social Security Disability Insurance, since more than a quarter of adults on SSDI have a primary psychiatric impairment. Most want to work but are limited to no more than twenty hours a week—when the evidence suggests that “supported employment” would both save money and help them do better.What’s more, many proposals now popping up as health reform initiatives could improve mental health treatment immeasurably. Comparative effectiveness research has already established that the older generic antipsychotics work as well as a class as the newer, branded, more expensive atypical ones. And stepped-up quality improvement efforts, write Audrey Burnam and colleagues, could increase the effectiveness of mental health treatments provided to veterans. Come to think of it, how about aiming for this title for Health Affairs’ next theme issue on mental health care: Why Not the Best? Loading Comments... Please enable JavaScript to view the comments powered by Disqus. DetailsExhibitsReferencesRelated Article MetricsCitations: Crossref 2 History Published online 1 May 2009 InformationCopyright 2009 by Project HOPE - The People-to-People Health Foundation, Inc.PDF downloadCited ByEmployee Assistance Programs: Evidence and Current Trends19 November 2012Theory in practice: Helping providers address depression in diabetes care*Journal of Continuing Education in the Health Professions, Vol. 30, No. 3

Distinguishing PETs from PITs: Developing Technology with Privacy in Mind

The development of new technologies has the potential both to create new privacy intrusions and obstacles to preserving privacy never previously envisaged as well as address privacy concerns, by enabling control, monitoring and permission revocation by individuals. Technology often seems to lead to the erosion of our ability to perform everyday activities anonymously. The development of biometrics, RFID and the pervasiveness of data matching are all examples of technologies that cause this concern. Privacy law should be both robust enough to address the technological concerns we face today, and adaptive enough to tackle new and unforeseen hurdles. This submission responds to Part B, titled ‘Developing Technology’, of the Australian Law Reform Commission’s Discussion Paper 72 Review of Australian Privacy Law, September 2007, which examines the adequacy of the Privacy Act 1988 in addressing the privacy impact of developing technologies and. The submission restates the need for a revised definition of personal information and draws attention to differing issues arising from ‘privacy invasive technologies’ (PITs) and privacy-enhancing technologies (PETs). The submission does not address all the technologies discussed by the ALRC, but does expressly comment on the privacy implications of radio frequency identification (RFID) and biometrics. Enhanced powers and functions for the Privacy Commissioner in relation to new technologies are also proposed.

In Support of a Statutory Privacy Action in Australian Law

As part of its ongoing Review of Australian Privacy Law, the Australian Law Reform Commission, in its Discussion Paper 72, proposed that a new statutory cause of action of for “invasion of privacy” be introduced into the Privacy Act 1988 (Cth). The New South Wales Law Reform Commission is also consulting on the introduction of a statutory action - often referred to as a ‘privacy tort’. This submission supports the proposal from the ALRC that there should be a privacy action stated in general terms and with a non-exhaustive list of examples, but suggests that all of these examples clearly relate to ‘private life’. The right should not apply to legal entities or to deceased persons, and should apply to negligent as well as intentional and reckless acts. If the right is to be limited by a requirement for ‘proof of damage’ it is essential that ‘damage’ include humiliation, emotional distress etc. The submission supports an exhaustive list of defences, but argues for a proportionality condition for all defences and for any ‘authorised by law’ defence to be restricted to specific authorisations.

Electroconvulsive therapy, capacity and the law in Ireland.

The Mental Health Act (MHA) 2001 has major implications for treating patients with electroconvulsive therapy (ECT), especially as those referred for treatment are among the most severely ill and often lose capacity. Under the MHA 2001, a person may only be treated without consent if they are an involuntary patient. However, there is no provision in the Act for treating voluntary inpatients whose mental state has deteriorated but who do not seek to leave hospital. Such people may lack capacity to make treatment decisions but be passively compliant. The Wards of Court system is currently the only legal recourse but has been criticised by the Law Reform Commission and is unwieldy. Further legislation governing treatment of people lacking capacity to consent to ECT or withhold consent is required to protect and advance treatment of all concerned.

Sperm removal and dead or dying patients: a dilemma for emergency departments and intensive care units

An unexpected consequence of the increase in the use of fertility treatment is that emergency department and intensive care doctors are receiving requests from wives (actual or de facto) of dying or recently deceased men for sperm removal. Legislation in all states and territories regulates removal of sperm from a dying man and, provided that lawful consent is obtained, a doctor can harvest sperm. In several states, including Victoria, harvested sperm cannot be used in a fertilisation procedure without the man's consent, and debate surrounds the issue of consent and how it can be proved. Recent Victorian Law Reform Commission recommendations attempt to streamline the law to make a man's consent the cornerstone of decision making for both harvesting and subsequent use of sperm.

Reply to ‘The Other Abortion Myth—The Failure of the Common Law’

My experience with academic lawyers when it comes to the law of abortion is that if there are five in a room, you’ll have six different opinions about what the law says. Invite those who advise abortion service-providers working in clinics or public hospitals, and you’ll get an even greater diversity of views. So it is with wry amusement that I respond to the certainty of Kate Gleeson that my understanding of the law—that it is unclear and in need of reform—is wrong. Gleeson asserts that that the common law regime operating in Victoria, New South Wales and Queensland is clear, certain and preferable to other regulatory regimes. The Victorian Law Reform Commission (VLRC) disagrees. On page 16 of its 2008 Final Report on the Law of Abortion it notes that, “The law of abortion in Victoria is unclear.” It notes further that, “it is not possible to describe the current state of Victorian law with reasonable precision.” The report states that the law in both NSW and Queensland, the other common law states, is “broadly similar to the current Victorian law” and so, presumably, equally unclear and imprecise. Gleeson dismisses the occasional prosecution of the increasingly few doctors willing to perform the procedure in this country as non-indicative of a need to improve the current common law regime. I wonder if she has ever spoken to any of these providers? I have and so I know that even the threat of prosecution, still less the occasional charge or successful prosecution as has happened in Queensland in 1986, Victoria in 1987, West Australia in 1998 and New South Wales in 2006, is enough to stigmatise the procedure and drive doctors away from providing it. This has left a shortage of skilled providers across the country that makes insistent claims by academics that abortion is lawful, empty. Gleeson says I am wrong to suggest that the absence of prosecution results from those in key positions of authority turning a blind eye. Again, I would refer her to the facts, this time the period leading up to reform of the law in WA, which was a presumed common law state. In 1998 in West Australia, several surprise decisions by members of the police and the Director of Public Prosecutions (DPP) saw a doctor charged with violating S199 of the Criminal Code. In response, and led by Federal MP and former West Australian Premier Carmen Lawrence, a group of fourteen female parliamentarians sent a letter to the DPP John McKechnie, the Commissioner of Police, the Attorney General and the Minister for Health. The letter registered their “vehement objection” to the possible prosecution. The DPP, after announcing that abortion was only legal in West Australia if a woman’s life was at risk, Bioethical Inquiry DOI 10.1007/s11673-008-9125-2

Compelling Evidence: marriage, colonialism and the question of Indigenous rights

In 1986 the Australian Law Reform Commission found that Aboriginal spouses who married traditionally were compellable witnesses against each other in criminal trials, despite the privileging of spouses as non‐compellable within the common law. The basis of this was that they were not recognised as husbands and wives according to the laws of evidence. The Commission argued that failure to extend the common law rule of inter‐spousal non‐compellability to traditional spouses gave the impression that the law cared only about the stability of Marriage Act (1961) marriages, despite the continuing importance of traditional marriages. This article traces a debate about the compellability of Aboriginal spouses (wives) back to 1930s and 40s Australia. Seeing this as symptomatic of the legal injustices faced by Indigenous people, humanitarians and white women reformers were calling for human rights and legal equality. Now, the Law Reform Commission is arguing that the way to ensure this is to first recognise customary law. Then, reformers came up against a bureaucracy and legal fraternity prepared to recognise neither Indigenous customary law, Indigenous women’s legal equality nor human rights.

Reform of the Civil Justice System two decades past - implications for the legal profession and for law teachers

By the mid-1980s, the civil justice system in many common law jurisdictions was reportedly ‘in crisis’, crippled by excessive delay, cost and complexity in proceedings and out of reach of ordinary people. During the next two decades, law reform commissions and other agencies were charged with identifying problems with the civil justice system and with making recommendations for its improvement. These bodies seemed to be in ‘universal agreement as to the nature and severity of the problems afflicting the common law civil justice systems’ and they appear to have produced proposals that have much in common. Many reforms were implemented as a result of their efforts the majority of the recommendations resulted in procedural reform achieved by legislation, rules of court and practice directions. Not unexpectedly, many reform agencies identified legal education as a factor contributing to the perceived crisis and made recommendations for change (and indeed, separate enquiries conducted into the state of legal education made similar recommendations). Reform agencies recognised that the system of civil litigation and the attitudes and skills of legal professionals (and law graduates) are inextricably linked. Legal education had to respond to and facilitate reform if reform was to be sustained. This article is available in Bond Law Review: http://epublications.bond.edu.au/blr/vol21/iss3/8 192 REFORM OF THE CIVIL JUSTICE SYSTEM TWO DECADES PAST – IMPLICATIONS FOR THE LEGAL PROFESSION AND FOR LAW TEACHERS

Response to the Australian Law Reform Commission (ALRC) Privacy Report 108, Parts A-C, F & I-K Submission to the Australian Government

This submission is to the Department of Prime Minister and Cabinet as part of of its post-ALRC consultation on privacy law reform. The submission covers all the parts of the ALRC report which are not covered separately in the Centre's three other submissions - on the Unified Privacy Principles (UPPs); on Credit Reporting, and on Health & Research Privacy. The main topics covered in the submission are: Part B - Developing Technology Part C - Interaction, Inconsistency and Fragmentation Part D - The Privacy Principles (structure, consent) Part F - Office of the Privacy Commissioner Part G - Credit Reporting Provisions Part H - Health Services and Research Part I - Children, Young People and Adults Requiring Assistance Part J - Telecommunications The submission reserves comment on those matters - Exemptions and a Private Right of Action - which the government has expressly deferred to a second round of changes.

Adult, Consensual Sex Work in South Africa – the ca utionary message of criminal law and sexual morality

South Africa’s current legal regime criminalises the voluntary selling or buying of adult sex. This article argues that continued criminalisation of voluntary sex work is wasteful and destructive, while being an imprudent use of public resources. It uses the South African Law Reform Commission (SALRC)’s Discussion Paper on Adult Prostitution as the starting point to argue in favour of a legal framework that recognises voluntary adult sex workers as legitimate labourers who are entitled to the full protection of the law and human rights. The article considers the theoretical framework on criminal law and sexual morality, while examining how South Africa’s legal system has disempowered black women and gay and lesbian people through employing criminal sanction in the sphere of sexual morality. We then argue that most human relationships involve some degree of contractual or transactional behaviour and that any criminal laws inserted into the fray of complex social and sexual relations will draw arbitrary distinctions and create standards that are not judicially manageable. In conclusion, we consider the current New Zealand approach to sex work and argue that South Africa should adapt its model.

Minding the Gap in Unlawful and Dangerous Act Manslaughter: A Moral Defence of One-Punch Killers

Whilst it is true that the one-punch killer has crossed a moral threshold and acted wrongfully by committing an assault, his victim's death may be both unforeseen and unforeseeable. The gap between what was foreseen/foreseeable and death may thus be considerable. This article suggests it is too great; convicting the killer of manslaughter places too much weight on the element of luck. The task then is to identify an appropriate principle for regulating the gap and in the course of tackling this task the article considers and rejects, inter alia, a recent recommendation by the Law Reform Commission of Ireland.

Should we use the criminal law to punish HIV transmission?

Legislators around the world are grappling with the question of whether or not the criminal law should be deployed in order to punish HIV transmission that is the result of voluntary sexual encounters between competent, consenting adults. A few years ago, when I was working in South Africa, that country’s Law Reform Commission proposed to declare HIV transmissions that are the result of voluntary sexual encounters among competent consenting adults a criminal offence that ought to fall under the category of rape (Schüklenk, 2003). Rape and voluntariness do not go too well together, so – not being a lawyer – I was surprised about the seemingly otherworldly machinations of legal minds in the context of HIV/AIDS. Matthew Weait points out in his book Intimacy and Responsibility: The Criminalisation of HIV Transmission that many liberal democracies have made HIV transmission a criminal offence, among these Canada, Sweden, Germany, Norway, Denmark, the Netherlands, the UK and many others. In most countries, HIV infected people who demonstrably knew about their infection have been successfully prosecuted for transmitting HIV to their sexual partners.

STEP Canada holds inaugral symposium 'trust law reform in Canada'

STEP Canada held its inaugural Symposium on 5 and 6 November 2007 in Toronto on the subject of trust law reform in Canada, co-chaired by Margaret O'Sullivan and Kathleen Cunningham, both senior STEP Canada executive members. The Symposium was extremely well attended by representatives across the country, including participants from every major trust company at the senior executive level, senior trust and estate practitioners, academia, government, law reform commissions and the judiciary. A primary theme of the Symposium was that trust law reform in Canada is long overdue and modern legislation is needed in Canada to enable sophisticated planning reflecting modern societal needs and an increasingly complex investment market. The existing patchwork of trust law in Canada's common-law provinces primarily dates back to the late 19th Century. It is foreseen that new legislation should enable trusts to better reflect contemporary social needs and the increasing use of the trust given the demographics of an aging population. There have been only modest amendments to trust legislation in certain of the Canadian provinces, such as the ‘prudent investor’ rule with regard to trustee investment.

Considering New Privacy Laws in Australia

Like many nations, Australia is currently weighing numerous options regarding privacy legislation. The Australian Law Reform Commission (ALRC) has released a 2,000-page review of Australian privacy law, in which it proposes several changes that would significantly shift the balance between freedom of speech and privacy in Australia because they would extend to the media and private individuals as well as governments and businesses - especially important because Australia has no express right of free speech.

The Recognition of Muslim Personal Laws in South Africa: Implications of Women's Human Rights

Bringing personal status laws into conformity with international and constitutional equal rights provisions is an imperative for the protection of women's human rights. Multicultural secular democracies face a challenge in effectively and meaningfully guaranteeing the right to equality and the right to religion and culture. Currently, Muslim marriages are not legally recognized in South Africa. This creates problems for women, especially in the family law arena. This paper considers law reform efforts aimed at the recognition of such marriages in South Africa. The South African Law Reform Commission has approved a report containing recommendations and a proposed Muslim Marriages Act on the recognition of Islamic marriages. This draft bill seems to codify aspects of Muslim Personal Laws. The South African Commission on Gender Equality introduced an alternative draft bill, the Recognition of Religious Marriages Bill. This draft bill provides for recognition of all religious marriages and avoids issues of codification of specific religious tenets, so as to comply with constitutional imperatives. This paper identifies potential constitutional violations that may emerge in the law reform efforts that are currently taking place in South Africa. It explores amongst other issues, the tensions between women's equality rights and religious rights, codification of religious personal status laws versus recognition of religious marriages, achieving equal access to justice for all women, and also tensions arising between individual equality rights and group equality rights.

Provocation in Sentencing: A Culpability-Based Framework

In a number of jurisdictions, including Victoria, the partial defence of provocation has been abolished. Provocation will now be considered in the sentencing process, alongside other sentencing factors that the court must take into account to arrive at an appropriate and proportionate sentence. We argue that, rather than being one of the many general mitigating factors that a court must consider, provocation is relevant to the degree of the offender's culpability and that an understanding of the theoretical foundation for assessing culpability should inform a new normative framework for assessing whether and how provocation warrants a reduction in an offender's sentence.This article argues that the crucial questions for a court are whether the victim's actions gave the offender a justifiable sense of being wronged and the relationship, or proportionality, between the offence and the provocation. Adopting an approach canvassed by the Victorian Law Reform Commission, we propose that conduct that arises out of the victim exercising his or her right to equality should not provide justification for an offender's sense of having been wronged. Under this approach, the personal circumstances of an offender may be relevant to assessing the gravity of provocation. However, the question of whether an offender has a justifiable sense of being wronged by the provocation should be evaluated consistently with contemporary societal notions of equality.

The State of Information Security Law: A Focus on the Key Legal Trends

Information security is rapidly emerging as one of the most critical legal issues facing companies today. Concerns regarding corporate governance, individual privacy, accountability for financial i...

Advance Care Directives and the Position in Ireland: What lessons can Ireland learn from the United Kingdom, the United States and Europe?

An Advance care directive entitles a person to request in advance either the refusal of or consent to certain medical treatment if that person is not competent to consent or refuse at the time such refusal or consent is required. The 2003 Law Reform Commission’s Consultation Paper on Law and the Elderly briefly mentioned advance directives. However, the Paper decided to leave the issue to a future Paper that would give a more comprehensive analysis. There is no Irish legislation on the matter and consequently the legal position is unclear. The English Mental Capacity Act 2005 has given recognition to advance directives under section 24. It is interesting to note that only refusal is covered by the Act. The 2005 Law Reform Commission Consultation Paper on Vulnerable Adults discusses the issue of advance directives in more detail. This Paper will examine the Irish position of advance directives. The British Mental Capacity Act and recent case law will provide a comparative analysis. The UN Convention on the Protection of the Rights and Dignity of Persons with Disabilities will also be examined.