The development and implementation of the Assisted Decision-Making (Capacity) Act 2015
The Assisted Decision-Making (Capacity) Act 2015 (‘the 2015 Act/ ‘the Act’) was signed into Irish law after a protracted legislative process. This Act significantly reforms how we interact with and support adults who require assistance exercising their right to make decisions.
Prior to the 2015 Act, an adult could plan ahead by way of an enduring power of attorney, appointing a trusted person to take decisions about their property and personal care in the event of the adult’s later ‘mental incapacity’. Otherwise, the only available legal mechanism was the court-based wardship system, a form of full adult guardianship. The wardship system operated under pre-Independence legislation, the Lunacy Regulation (Ireland) Act of 1871. When admitting a person to wardship, the court would declare the person to be, ‘of unsound mind and incapable of managing his person or property’. This was long criticised as a blunt instrument, over-broad and disproportionate in its impact. Of approximately 2,200 adults in wardship in 2022, more than half were older adults with dementia.
The reforms introduced by the 2015 Act include:
- the repeal of adult wardship, with former wards moving to new supports if appropriate
- a statutory functional assessment of capacity
- rights-based guiding principles
- a three-tier framework of supports for decision-making.
- enhanced tools for advance planning with a new form of enduring power of attorney and advance healthcare directive
- the establishment of the Decision Support Service
A person’s diagnosis of dementia is unconnected to the person’s ability and entitlement to make decisions.
Ireland ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in March 2018. Article 12.2 of the CRPD states that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
During the development of the 2015 Act, NGOs and disabled persons’ organisations made submissions arguing for better alignment of the Act with the CRPD.
In the 2015 Act, ‘capacity’ is assessed based on a person’s ability to understand at the time that a decision is to be made, the nature and consequences of that decision in the context of available choices. The language aspires to be disability-neutral with no medical component. On this analysis, a person’s diagnosis of dementia is unconnected to the person’s ability and entitlement to make decisions.
The guiding principles in the Act state that an adult, irrespective of their presentation, is presumed to have capacity until the contrary is shown and must be supported as far as possible to make decisions independently. An unwise decision is not evidence of a lack of capacity. The guiding principles require minimal restriction of rights and freedoms, and respect for privacy, dignity and autonomy. Significantly, the 2015 Act expressly adopts the principle of ‘giving effect to a person’s will and preferences’ rather than a best interests approach. The UN Committee on the Rights of Persons with Disabilities has expressly rejected a best interest standard.
The decision-making arrangement tiers
The three-tiered support framework under the 2015 Act is designed to allow a person to access graduated supports in relation to decisions about property and affairs and personal welfare.
At the lowest tier, a person who believes that their own capacity is or may soon be in question may appoint a decision-making assistant. The decision-making assistant helps by obtaining and explaining relevant information and helping the person to communicate their own decision. At the middle tier, a person may appoint a co-decision-maker to make specified decisions jointly with them, as set out in a formal co-decision-making agreement registered with the Decision Support service.
At the upper tier and as a last resort, the court may appoint a decision-making representative to make limited decisions on behalf of a person. The decision-making representative must continue to have regard to the person’s will and preferences and may not exercise restraint or deprive the person of their liberty.
In relation to advance planning, enduring powers of attorney have been modified so that these are now registered with and supervised by the Decision Support Service. Advance healthcare directives have been given statutory effect. An adult with capacity may create an advanced healthcare directive, to provide an authoritative statement of their will and preferences in relation to treatment decisions. An advance healthcare directive becomes effective if the person loses capacity to make treatment decisions and a refusal of treatment contained in the directive is as binding as a refusal made contemporaneously. A person may also appoint a designated healthcare representative as their agent, to ensure that their advance healthcare directive is understood and respected.
The role of the Decision Support Service?
The statutory functions of the Director and staff of the Decision Support Service might be summarised as duties to promote awareness, provide information, supervise compliance and investigate complaints. Co-decision-makers, attorneys and decision-making representatives submit accounts and periodic reports to the Decision Support Service. The Director is also required to establish external panels of professionals to assist with certain functions.
The Director of the Decision Support Service is authorised to publish a suite of codes of practice to provide guidance. It is hoped that the 13 codes that have now been published will make the 2015 Act more accessible to decision supporters, professional persons and service providers and will help them to navigate scenarios that may arise in practice.
The key factors for the successful implementation of the Act?
The response from the public since commencement of the Act has been overwhelmingly positive. To sustain this, it is critical that people have access to reliable information. The Act is new and complex and it replaces a system that has existed for over 150 years. This brings challenges. The Decision Support Service manages queries directly from the public, provides a wide range of information resources in different formats and is available to engage directly with all our stakeholders. It has also been important to build good relationships with professional and representative bodies and at a political level to ensure that this long-awaited initiative is sufficiently supported. The performance of the Act must be kept under review to ensure that it is fit for purpose.
One of the key messages of the Decision Support Service is that the Assisted Decision-Making (Capacity) Act is an Act for everyone. Any of us could encounter future challenges with decision-making. One of our champions is Helen Rochford-Brennan, a well-known dementia campaigner . In our public information campaign, Helen speaks about coming to terms with her own diagnosis of dementia and the importance of planning ahead to ensure that her wishes are always known and respected, while she gets on with ‘living joyfully’. We hope that this message of positivity will inspire others to engage with this important rights-based legislation.
Director of the Decision Support Service
This article is an overview of certain parts of the Assisted Decision-Making (Capacity)
Act 2015 and related matters and should not be relied on as legal advice or opinion