The Assisted Decision-Making (Capacity) Act finally became law on 26 April 2023. Our Health & Prosecutions team reviews what certain healthcare providers need to be aware of in order to ensure those under their care lacking capacity have appropriate access to the decision-making supports available to them.
Has the Assisted Decision-making Capacity Act 2015 been commenced?
The Assisted Decision-Making (Capacity) Act 2015 was signed into law on 30 December 2015. However, certain elements of the systems required to implement the legislation were not in place. While the start date for this important legislation was initially expected to be June 2022, the eagerly awaited commencement of the legislation was further delayed to allow for amending legislation, specifically the Assisted Decision-Making (Amendment) Bill 2022, which is now in place. This allowed for the above-mentioned commencement of the Assisted Decision-Making (Capacity) Act on 26 April 2023.
In implementing the new legislation, certain healthcare providers are advised to consider the effect and scope of the new legislation and ensure that the residents under their care who may lack capacity can access the decision making supports most appropriate to them.
Decision Support Service (DSS)
The DSS is the statutory agency responsible for oversight and implementation of the new assisted decision-making system in Ireland.
Three tier system
Under the new legislation, a person who currently requires decision support can avail of a three tier system of assisted decision-making:
- Decision-Making Assistance: A person can formally appoint a decision-making assistant, who is supervised by the DSS. The person retains ultimate decision-making responsibility.
- Co-Decision-Maker: A person can appoint someone to make decisions on their behalf on a joint responsibility basis. The co-decision-maker is also subject to the supervision of the DSS.
- Decision-Making Representative: The Circuit Court can appoint a representative to make certain decisions on behalf of persons who are unable to make such decisions on their own behalf.
Although the Circuit Court will become the most common jurisdiction for capacity issues, the High Court will retain its’ role in respect of inherent jurisdiction to deal with appropriate matters as they arise, as well as cases where detention orders are required. Cases involving the withdrawal of life-sustaining treatment and treatment orders would also require the intervention of the High Court.
High Court Wardship Jurisdiction
Existing Wards of Court will transition out of the High Court’s jurisdiction within three years of the commencement of the new legislation. Any Wards who are deemed to have capacity will be discharged from the wardship jurisdiction, while any Wards who continue to require decision support can avail of the appropriate support tier.
The commencement of the Assisted Decision-Making legislation is most welcome, not least because it provides healthcare professionals with the necessary framework to ensure that those under their care who lack capacity can access the decision making support most appropriate to them. If you have any questions about the new legislation or existing wards of court, please contact our Health & Prosecutions team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
Frequently Asked Questions
Who does the Assisted Decision-Making Act apply to?
It applies to persons lacking in or with limited capacity, who require some level of assistance to make important decisions. The innovation that the legislation has brought about is that a person can lack capacity on certain issues but have capacity on other issues.
|What is assisted decision-making?
Assisted decision-making is the process in which persons lacking in or with limited capacity can be facilitated insofar as possible to make decisions about their own lives.
Who can be a decision-making representative?
A decision-making representative is appointed by the Court where someone lacks capacity to make decisions on their own behalf. Where possible, the Court will appoint a suitable person, and in practice we would expect that this may often be, for example, a spouse, sibling or adult child. If there is no suitable person, the Court can appoint a decision-making representative from a panel maintained by the Decision Support Service (DSS).
How do you assess capacity in Ireland?
The starting point under the new legislation is that every adult is presumed to have capacity to make decisions. However, if there is information to suggest that a person may have some difficulties around decision-making, a functional capacity assessment is carried out. This means that an assessment is made of the person’s ability to understand and process information about a specific decision, at a specific point in time.