Capacity Law: A major review of The Assisted Decision-Making (Capacity) Act 2015

Kate Butler has carried out a detailed review of the new act, which considers all of the main people involved in its provisions, and the principal changes for people with intellectual disabilities and others.

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  • The Assisted Decision-Making (Capacity) Act 2015 is now law
  • It replaces the Lunacy Regulations (Ireland) Act 1871
  • Before, people either had the ability to make decisions or they didn’t
  • With this new Act, people are allowed to make decisions in some areas of their life if they can but maybe not in other areas
  • All their decisions are not made for them, as before
  • The Act covers people with a disability, a head trauma or old age
  • The Ward of Court system is to be removed

Last December, the President of Ireland signed a new piece of legislation into law that has the potential to affect every adult in the State: the Assisted Decision-Making (Capacity) Act 2015. The Act governs the law in relation to adults who are experiencing difficulties with decision making, whether because of intellectual disabilities, acquired head injuries, or old age, and applies to any Relevant Person (RP) whose capacity is in question, or may shortly be in question, in respect of one or more matters (s.2(1)).

Commencement dates have yet to be published, but it is hoped that it will be commenced within 2016.

It is a progressive and reforming piece of legislation: it repeals the Lunacy Regulations (Ireland) Act 1871, which heretofore governed the law in this area. It changes the definition of capacity: while previously it was assessed on a ‘status’ basis – you either have it or you don’t – now, it can be assessed on a ‘functional’ basis. S.3 provides:

“A person’s capacity shall be assessed on the basis of his or her ability to understand the nature and consequences of a decision to be made by him or her in the context of the available choices at the time the decision is made.”

Rather than a fixed idea that a person can or cannot make any decisions, capacity is therefore to be understood as a fluid, changeable concept, depending on the circumstances of the person at the time and the nature of the decision to be made.

An assessment of capacity will also take into account that a person may be able to understand matters if they are presented to the person in a particular way (e.g. through pictures or plain language).

Crucially, the Act defines capacity in relation to decision-making and explicitly sets out that it does not apply to capacity or consent required in relation to marriage, civil partnership, judicial separation, divorce, the placing of a child for adoption, the making of an adoption order, guardianship, sexual relations, serving as a member of a jury, or making a will. At the moment, decisions to exercise fundamental rights do not have legal force when a person is a Ward of Court because he or she isn’t considered to have the capacity to make any important decisions. Indeed, the power or capacity to make these decisions, self-determination, is removed from these persons altogether.     

The Act does away with – as much as is possible – a paternalistic, ‘best-interests’ system of substitute decision-making.  Where a person is assisting an RP to make a decision, and even if the assistant believes that the RP is making an unwise decision, the assistant must assist the RP in making the decision of the RP’s choice (as long as no harm would come to the RP or another person).

The Act is 147 sections long and deals with a huge range of issues, including the Convention on International Protection of Adults, which is not dealt with here. This article hopes to provide an introduction to the main and immediate areas of concern for practitioners.

The main actors in Assisted Decision-Making:

  1. RP: A Relevant Person (RP) is someone whose capacity is in question, or may shortly be in question, in respect of one or more matters, and a person who lacks capacity (s.2(1)).
  2. Director: The office of Director of Decision Support Service replaces the Office of Wards of Court but with very much extended functions, including public awareness, supervising assistants and drawing up codes of practice.
  3. Circuit Court: Apart from specified issues where the High Court has jurisdiction, the Circuit Court has jurisdiction to deal with applications under the act. The court may make two declarations in relation to capacity:
    1. That a person lacks capacity to make a decision without assistance (i.e. once they have assistance, they effectively have capacity);
    2. That a person lacks capacity to make a decision even with
  4. DMA: An RP may appoint a person to be their decision-making assistant (DMA). The functions of the DMA are limited to advising the RP, ascertaining the will of the RP and once the decision is made, ensuring that the decisions are implemented.
  5. CDM: An RP may appoint a suitable person to be their co-decision maker so that they can make decisions jointly in relation to personal welfare or property, or both. This person must be a relative or friend who has a relationship of trust. The agreement must be registered with the Director and the CDM must file a report every 12 months, which must be approved by the RP. The Director must conduct a review every three years.
  6. DMR: The Circuit Court may appoint a decision-making representative (DMR), or make a decision-making order on behalf of the RP. A DMR has powers appointed by the court, which can be extensive, and so there are specific restrictions, e.g. a DMR cannot prohibit a person from having contact with the RP, and cannot restrain the RP unless there are exceptional circumstances. The Director must keep a register of DMRs and the DMR must file a report every 12 months.

Wards of Court:

The Ward of Court system is to be eliminated through a process of review: each Ward of Court aged 18 or over must be reviewed by the High Court or the Circuit Court (whichever court made the original order) within three years of commencement. If they are deemed not to be lacking in capacity, they will be discharged and their property returned to them.

If they are deemed to be lacking in capacity in relation to a particular decision/s, then they will be discharged and will come under the purview of the new regime: i.e. the former ward may appoint a CDM, or the court may appoint a DMR.

There are interim orders provided for so that the court can make orders where an application has been brought before the court, but not yet determined.  While the Lunacy Act 1871 is repealed, the jurisdiction in lunacy and minor matters is an inherent one, so it is likely that the wardship jurisdiction in relation to minors will survive enactment.

Enduring Powers of Attorney:

The Act will ultimately replace the Powers of Attorney Act 1996. The scope of authority of enduring power has been extended in that it may confer authority on an attorney to make decisions about the donor’s personal welfare. Previously, an attorney could make personal care decisions, which did not include the giving or refusing of medical treatment. Personal welfare is now defined to include accommodation, participation by the donor in employment, education or training, and in social activities; decisions on any social services; healthcare and other matters relating to the donor’s well-being. However, a donor is restricted from including the following matters in powers relating to personal welfare: the refusal of life-sustaining treatment, or anything which is the subject of an advance healthcare directive made by the donor.

Procedures in relation to the instrument include the requirement for statements by the donor, by a registered medical practitioner and a healthcare professional, and by the attorney. The procedures for revoking – which were not set out explicitly in the 1996 Act – are also particularised. Once the instrument has been registered, revocation may only occur following an application to the court.

The attorney must file a report to the Director every 12 months. Where the powers relate to property and affairs, the attorney must submit a schedule of assets and liabilities, as well as projected statement of the donor’s income and expenditure within 3 months of registration.

Advance Healthcare Directives

Anyone aged over 18 and who has capacity may make an advance healthcare directive (AHD). This will enable the directive-maker to be treated, if they lack capacity in the future, according to their will and preferences. AHD are applicable to general mental health treatments, but not where a person is suffering from a mental disorder and involuntarily detained under Part 4 of the Mental Health Act 2005.

While a refusal of treatment must be complied with (if the treatment and circumstances are clearly identified in the AHD), a request for a specific treatment is not legally binding. An RP, if he or she has capacity and is over 18 when making the AHD, is entitled to refuse treatment for any reason, including a reason based on religious beliefs.

An AHD is not applicable to life-sustaining treatment, unless this is substantiated by a statement by the directive-maker to the effect that the AHD is to apply, even if his or her life is at risk.

A directive-maker may designate a named individual to exercise relevant powers, i.e. to be their healthcare representative (HR). The HR has the power to ensure that the terms of the AHD are complied with and the directive-maker may confer powers that allow the HR to advise and interpret the directive-maker’s will and preferences, and to consent or refuse treatment, up to and including life-sustaining treatment, based on the known will and preferences of the directive-maker by reference to the AHD.

Where there is an ambiguity in how the AHD is to apply, the healthcare professional must consult with the HR, or friends and family. Where it is not resolved, it must be resolved in favour of the preservation of the directive-maker’s life.

Safeguards and Offences

Safeguards such as eligibility, disqualification, facility for complaints etc, are fairly uniform across the spectrum. There is oversight by the Director in relation to a CDM, a DMR, a HR and Powers of Attorney, but not in relation to the appointment of a Decision-making assistant by an RP, except via complaint.

There are criminal offences in relation to fraud provided for, but only in respect of a Co-decision-making agreement and Powers of Attorney.

A decision-making assistant, co-decision-maker, decision-making representative or attorney who ill-treats, or wilfully neglects the RP, will be guilty of an offence and liable for summary conviction or conviction on indictment.

Look it Up

Assisted Decision-Making (Capacity) Act 2015:

http://www.oireachtas.ie/documents/bills28/acts/2015/a6415.pdf

Butler, Kate, Moving Capacity out of the Victorian age: the new Assisted Decision-Making Bill, 18(5) 2013 Bar Review 102

Duggan, Diane, Capacity Law in Ireland: Assisted Decision-Making Bill 2013 2014 (1) IFLJ 28

Healy, Kevin, The Assisted Decision-Making (Capacity) Bill 2013: A step in the right direction but does it go far enough? 2015 COLR 101

 

This article was first published in the Law Society Gazette (March 2016) and is reproduced with permission.

Kate Butler BL is a practising barrister and a board member of Inclusion Ireland, a representative group for people with intellectual disabilities. She is available to give talks on this topic.

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