The Assisted Decision-Making (Capacity) Act 2015 was signed by the President on 30 December 2015. The Act reforms Ireland’s Capacity legislation which has been in place since the 19th century. It establishes a modern statutory framework to support decision-making by adults who have difficulty in making decisions without help. It will repeal the Marriage of Lunatics Act 1811 and the Lunacy Regulation (Ireland) Act 1871.
The Act proposes to change the law from the current all or nothing status approach to a flexible functional definition, whereby capacity is assessed only in relation to the matter in question and only at the time in question. If a person is found to lack decision-making capacity in one matter, this will not necessarily mean that s/he also lacks capacity in another matter. The Act recognises that capacity can fluctuate in certain cases.
Decision-Making Support Options
The Act proposes three types of decision-making support options to respond to the range of support needs that people may have in relation to decision-making capacity. With each of the three decision-making support options decisions can be made on personal welfare, property and finance or a combination of both.
Assisted decision-making: a person may appoint a decision-making assistant – typically a family member or carer – through a formal decision-making assistance agreement to support him or her to access information or to understand, make and express decisions. Decision-making responsibility remains with the person. The decision-making assistant will be supervised by the Director of the Decision Support Service.
Co-decision-making: a person can appoint a trusted family member or friend as a co-decision-maker to make decisions jointly with him or her under a co-decision-making agreement. Decision-making responsibility is shared jointly between the person and the co-decision-maker. The co-decision-maker will be supervised by the Director of the Decision Support Service.
Decision-making representative: for the small minority of people who are not able to make decisions even with help, the Act provides for the Circuit Court to appoint a decision-making representative. A decision-making representative will make decisions on behalf of the person but must abide by the guiding principles and must reflect the person’s will and preferences where possible. The functions of decision-making representatives will be as limited in scope and duration as is reasonably practicable. The decision-making representative will be supervised by the Director of the Decision Support Service.
Enduring Powers of Attorney
Under the Powers of Attorney Act 1996, a person can create an enduring power of attorney appointing an attorney to make decisions on his or her behalf in relation to property and finance or personal welfare or a combination of both. The Act expands these powers to include health care matters. It requires attorneys appointed under the Act to abide by the guiding principles and to be subject to supervision by the Director of the Decision Support Service who will also have the role of registering new enduring powers of attorney.
Advance Healthcare Directives
The Act makes provision for advance healthcare directives. The purpose of the advance healthcare directive is to enable a person to be treated according to their will and preferences and to provide healthcare professionals with important information about the person in relation to their treatment choices. A person may, in an advance healthcare directive, appoint a designated healthcare representative to take healthcare decision on his or her behalf when he or she no longer has the capacity to make those decisions. Designated healthcare representatives will be supervised by the Director of the Decision Support Service.
Decision Support Service
The Decision Support Service will be set up within the Mental Health Commission to support decision-making by and for adults with capacity difficulties. The Director of the Decision Support Service will supervise and handle complaints against decision-making assistants, co-decision makers, decision-making representatives, attorneys of enduring powers and designated healthcare representatives. The Director will also prepare codes of practice for specific groups and will promote awareness of the legislation among the general public.
Current wards of court
Each ward will be reviewed in accordance with the new system. A ward who is found to have capacity will be discharged from wardship. A ward who continues to have capacity needs will be discharged from wardship and offered the support option most appropriate to his or her needs.
Role of Courts
The Act provides that the Circuit Court will have jurisdiction on most issues arising under this legislation. The specialist judges will undertake this work. The Act provides that the High Court will continue to have jurisdiction in relation to matters relating to withdrawal of life-sustaining treatment and donation of an organ from a living donor.
The provisions of the Act will be commenced on a phased basis to coincide with the ratification of the UN Convention of the Rights of Persons with Disabilities later this year.
The Act is available on the legislation pages of the Oireachtas website.