The Assisted Decision-Making (Capacity) Act 2015 (the 2015 Act) was signed into law by the President on 30 December 2015. When commenced, it will fundamentally change the way decisions are made by or for the most vulnerable members of society and will also allow an individual to determine his or her health treatment in the event he or she loses capacity to make such decisions in the future. The legislation has significant implications for how an individual’s personal and property affairs will be managed in the event of any issues in relation to capacity now or in the future and for people working with them in many sectors including healthcare and financial services.
The key features of the legislation include:
- The abolition of wardship and the repeal of the Lunacy Regulation (Ireland) Act 1871.
- The abolition of any status approach to capacity (which was how wardship operated) and the affirmation of the functional approach to capacity. This will involve an individual’s capacity being assessed on the basis of his or her ability to understand the relevant issues at the time a decision is to be made − i.e. the question is in relation to this decision at this time, does the person have capacity to make the decision.
- The introduction of guiding principles which must be applied in relation to decisions made pursuant to the 2015 Act, including a presumption of capacity and requirements to provide necessary support and assistance to individuals to enable them to make decisions.
- The appointment of a Director of the Decision Support Service (the Director) and the establishment of a Decision Support Service, which will form part of a new wider Mental Health Commission. The Director will have a wide reaching role in relation to matters such as implementation, supervision, provision of information and the promotion of public awareness in relation to the legislation and related issues. The Director may also prepare and publish relevant codes of practice, request other bodies to do so and approve codes of practice prepared by other bodies, whether at the request of the Director or otherwise.
- The conferral of jurisdiction on the Circuit Court, other than in certain specified areas such as provision or withdrawal of life sustaining treatment which will be subject to the jurisdiction of the High Court. Hearings under the 2015 Act will be held with the least amount of formality consistent with the proper administration of justice and will not be heard in public.
- The provision of a range of support structures for vulnerable individuals who need assistance with decision-making. People will be able to formally appoint decision-making assistants or co-decision-makers, where their capacity is in question or may shortly be in question. Both will be subject to supervision by the Director.
- A wide range of Circuit Court orders covering matters such as:
− declarations on a person’s capacity
− decisions in relation to personal welfare and property where a person does not have capacity
− the appointment of decision-making representatives and the scope of the powers of those decision-making representatives, which can include decisions in relation to a person’s personal welfare (including healthcare) and his or her property and affairs.
- The Act distinguishes between enduring powers of attorney made pursuant to the Powers of Attorney Act 1996 (1996 EPAs) and enduring powers of attorney made pursuant to the 2015 Act (2015 EPAs).
- A new regime for 2015 EPAs − this will be similar to 1996 EPAs in allowing an individual to appoint an attorney to act on his or her behalf in the event he or she no longer has capacity to do so. However, it will also contain fundamental differences, including:
− the execution and registration process containing more safeguards
− the personal welfare, property and affairs extending to healthcare (but not to the refusal of life-sustaining treatment)
− regular reporting and accounting obligations of attorneys to the Director
− a complaints procedures to the Director who will have powers of investigation.
- The 1996 EPAs remain unchanged other than that complaints may be made to the Director in relation to 1996 EPAs and investigations may follow those complaints or may be instigated at the initiative of the Director.
- The appointment by the Director of special visitors and general visitors with the relevant expertise to assist the Director with his or her supervisory functions under the 2015 Act.
- The introduction of advanced healthcare directives. These will allow an individual to make an advanced expression of his or her will and preferences concerning treatment decisions (including life sustaining treatment) that may arise at a time when he or she lacks capacity, and the appointment of designated healthcare representatives who will also be subject to review by the Director.
- The establishment of a multidisciplinary group to make recommendations to the Director in relation to codes of practice for the guidance of designated healthcare representatives and healthcare professionals or generally in relation to advanced healthcare directives.
- Provision to allow for the adoption of the Hague Convention on the International Protection of Adults in Ireland, which will assist with cross-border issues relating to capacity and decision-making.
The legislation is detailed and far-reaching and very much focuses on the rights of the individual and implementing his or her known will and preferences. It is anticipated that it will be commenced towards the end of the year, once the required structures are in place. It will be important for stakeholders to become actively involved in the preparation of the codes of practice.