The Assisted Decision-Making (Capacity) Act 2015 (the Act) is expected to finally commence this summer. To date most of it is not yet operational. This will mean a significant and timely change in the legal landscape surrounding assisted decision making for vulnerable adults.
Underpinning the new Act is that the individual will be at the centre of the process in relation to decisions about themselves. These decisions can be about their personal welfare, including health and social care, and their property and affairs. It is designed to ensure greater emphasis on dignity and the right to self-determination.
Key features of the new regime:
Decision Support Service
The Decision Support Service will oversee the new decision-making system. It will form part of the Mental Health Commission. The Decision Support Service will oversee the dismantling of the current wardship system and will be responsible for registering Enduring Powers of Attorneys (EPAs). One of the difficulties with the current wardship system in Ireland is that it can be blunt and inflexible in its operation. The new Act addresses this by providing a much wider range of supports to reflect a wide range of decision-making capabilities.
EPAs
EPAs that are already in place and were created before the Act will still be operational. However, such EPAs will be subject to the conditions of the Act and the Decision Support Service. The Act also provides for four other forms of ADM:
Assisted Decision Making
The decision maker may appoint a person to assist them in obtaining information, understanding and applying information and making decisions.
Co-Decision Making
The decision maker may appoint a person to make decisions jointly with them.
Decision Making Representative
The Court appoints a person to make decisions on another person's behalf in circumstances where such person is no longer capable of making certain decisions.
Advanced Health Care Directive
A person states in advance the type of medical treatment they wish to receive in case that they are not capable of making a decision at the time the treatment is required.
The Decision Support Service will monitor and assist in the creation and registration of such forms and further details will be provided once they are commenced in full.
Test for decision making capacity
The Act provides that a person will be presumed to have capacity to make decisions unless it is shown otherwise. Furthermore, the Act provides that any intervention under the Act will only be carried out when necessary and only to the extent necessary and in such a manner as minimises the restrictions on the persons rights and freedom.
To determine if a person lacks the necessary capacity, the Act sets out what is called a functional test. The concept behind a functional test is that different decisions require different capabilities. Under a functional test a person can decide if they are able to understand, retain and weigh up information and then to communicate their decision in an appropriate manner. Therefore, that means that a person may be deemed to have the necessary capacity to make one decision but not another. This focus on context specific decision-making is to be welcomed and also reflects the wider range of possible interventions which are being substituted for the relatively blunt Wards of Court process.
Who can assess capacity?
The person who requires the decision to be made will often be the best person to carry out the capacity assessment. This could be, for example, a lawyer, doctor or other healthcare worker, or a person providing financial services.
Under the new law, there are also certain circumstances where the capacity assessment must be undertaken by healthcare professionals which includes nurses and midwives, social workers, occupational therapists, speech and language therapist and psychologists. This is during the process of registering a co-decision-making agreement or enduring power of attorney. Formal statements from healthcare professionals are required to register these arrangements.
What's next?
The Act is expected to commence this Summer and we will publish a further update then. Of note also is the very recent publication of the Assisted Decision-Making (Capacity) (Amendment) Bill 2022. The Bill mainly tidies up certain aspects of the 2015 Act but also proposes some substantive changes such as providing greater rights to wards in the reviews of their capacity, bringing those provisions into alignment with those governing applications in respect of other types of relevant persons.
For more information in relation to any of the above please contact Mark Gorman or your usual contact in Beauchamps.
