An informative seminar on the Assisted Decision-making (Capacity) Bill 2013, was held on 6 February in the offices of the European Parliament Information Office in Dublin, organised by Inclusion Ireland, Leap and the Centre for Disability Law and Policy of NUI Galway. It was presented by Dr Eilionóir Flynn of the NUIG Centre.
Dr Flynn emphasised that the draft Bill is likely to be changed before it becomes law—hopefully this year. It will apply only to people over the age of 18, and it will not change laws about voting, marriage, mental health treatment or consent to sex. (Two days before the seminar, the Department of Health had announced public consultation on a general scheme of legislative provisions for advance healthcare directives, which will also be included in the Assisted Decision-making (Capacity) Bill.) The Bill will apply to every citizen, not only to people who have a disability or a mental impairment.
Capacity concerns the ability to make decisions—involving the ability to understand information, remember it, use or weight it, and communicate it. In all decision-making situations, certain principles apply: that there is accessible information; that ‘unwise’ decisions may be made; that the least restrictive intervention/assistance must be given, in protection of the person’s freedom and rights; that the person must participate in the intervention; that their will and preference should take precedence; and that others who know the person well should be consulted where necessary. The ability to make decisions will be presumed, unless it becomes an issue in a specific circumstance.
The Bill establishes the Office of Public Guardian whose role will include raising awareness of the UN Convention and the Act, supervising decision-making assistants; appointing panels of representatives and court friends; managing a register of agreements; dealing with complaints; and advising the courts. It will also be essential that codes of practice are prepared for the proper implementation of the Act. (It is still unclear whether there will, or not, be a role for HIQA in any of these matters, or for the National Advocacy Service.)
The Bill defines varying levels of assisted decision-making: assistance agreements, co-decision-making agreements, powers of attorney, decision-making representatives, and informal decision-making.
Anyone who believes that their capacity is ‘in question or shortly may be in question’ can make an agreement with a trusted person, or persons, to advise them. The agreement is notified to the Public Guardian (but it is not a court process). The role of the assistant/s is not to make the decision, but to help the person to communicate their decision and to make sure their wishes are followed. The person may cancel the agreement at any time if they no longer have trust in their assistant—as long as the change is again notified to the Public Guardian.
The decision for this kind of agreement is similar to the assistance agreement, but they are approved by the court. (The court can suggest the need for a co-decision maker, but it cannot force a person to have such an agreement). Again decisions are made together by the person with someone whom they trust, and that person makes an annual report to the Public Guardian. (At present the Bill does not include a mediation mechanism, in the case where the person and the co-decision maker may disagree on the reasonableness or safety of a decision.)
Enduring power of attorney
An enduring power of attorney is an agreement that someone you choose will make decisions for you once you consider that your capacity is, or shortly may be, in question. (This will replace the Enduring Powers of Attorney Act of 1996, but arrangements made under that Act will still apply.) A doctor must determine that the person has the capacity to make the decision for a power of attorney. The person states which decisions they want to be made on their behalf and names the person who should make them. The ‘attorney’ registers the agreement and reports annually to the Public Guardian. In this case, decisions are made for the person—in the areas previously agreed.
The person, or someone else, applies to the court when it is felt that a decision-making representative is required—that the person does not have the capacity to make a decision on their own. The court will determine that need and what decisions the representative can make. The representative may be someone the person knows, or someone from the Public Guardian’s panel. The representative role will be primarily voluntary, but the person may be liable for their expenses. The legal role and responsibilities of decision-making representatives has not (so far) been spelt-out in the Bill.
Wardships of Court will be reviewed within three years of the passing of the new Act, and co-decision-making or representative decision making orders will be put in their place, as determined by the court.
The Bill also includes ‘informal decision-making’, which may be seen as a kind of safety net for those (family members or service providers) who currently make decisions on behalf of a person, ‘as if they had capacity and authorised them to make it’. Such informal decision-making must ‘comply with general principles’ and not go against any agreement (assistant, co-decision-making, or representative); it applies only for ‘personal welfare matters’, not including financial matters.
Dr Flynn urged her audience to keep a close watch on the progress of the Bill as it goes through further stages in the Dáil, and to make their strong views/wishes known to their local representatives.