Although it has taken some time to achieve full commencement, implementation of the Act strengthens people’s human rights in Ireland, especially the rights of those with disabilities. It also enables greater alignment of Irish legislation with the United Nations Convention on the Rights of Persons with Disabilities.
The Assisted Decision-Making (Capacity) Act, 2015 (the “2015 Act”) was signed into law in December 2015 but had yet to be commenced awaiting necessary legislative amendments (provided by the Assisted Decision-Making (Capacity) (Amendment) Act of 2022) to enable its full commencement which occurred on 26 April 2023. This new law provides a legal framework for assisted decision-making to support those who have difficulty regarding their capacity to make certain decisions. Under the Act, a new service, the Decision Support Service, has been established and whilst this service is part of the Mental Health Commission, it has its own new and separate role.
The purpose of the 2015 Act is to support decision-making and to maximise a person’s capacity to make decisions. Under the new Act, the former wardship system is replaced by the new decision support framework.
The Act affords people an opportunity to plan ahead and to record their decisions in the event that they lose capacity to make those decisions in the future. It applies to everyone but, in particular, to people with intellectual disabilities, older people with diminished capacity or dementia and people whose capacity has been affected by traumatic injury. It is, therefore, particularly relevant to all health and social care service providers.
Decision supports can take different forms and there are five different decision support arrangements for people who have challenges with their capacity and who may need support to make certain decisions. Under these decision support arrangements, people can be appointed as decision supporters. A decision supporter has authority to help with certain decisions about a person’s personal welfare, property and financial matters.
For people who are currently experiencing challenges when making decisions, there are three types of decision supporters who can be appointed to support them as follows:
The functions of the Decision Support Service, as established under the Act, include the following:
- Regulating and registering decision support arrangements;
- Supervising the actions of decision supporters;
- Maintaining a panel of experts who will act as decision-making representatives, special and general visitors, and court friends;
- Investigating complaints made under the 2015 Act;
- Promoting awareness and providing information about the 2015 Act.
The 2015 Act is important because it strengthens the human rights of people in Ireland, especially the rights of people with disabilities. It recognises that all people have equal legal rights and respects the right of everyone to make choices for themselves and to be treated with dignity and respect. In accordance with the United Nations Convention on the Rights of Persons with Disabilities (“UNCRPD”), to which Ireland is a signatory, everyone should enjoy “legal capacity” regardless of disability. Enshrined in the 2015 Act, are the following principles:
- A person is presumed to have capacity to make decisions unless proven otherwise.
- A person should be supported to make decisions in so far as possible.
- A person has the right to make an “unwise” decision should he or she choose to do so.
- A person has the right to access different supports to help him or her to make decisions should he or she so require.
What does this new law mean for health and social care?
The 2015 Act supports the adoption of a human rights-based approach to decisions being made in relation to a person’s care and support. Health and social care service providers must familiarise themselves with the requirements of the legislation so that they can ensure that patients’ and service users’ rights to make decisions about their own lives, to include their health and welfare, are promoted and upheld.
Since 26 April 2023, the Decision Support Service is fully operational and people can interact with the service for information and guidance regarding the 2015 Act. In making provision for important decision-making supports that people can put in place so that they can receive future care in a manner that protects and promotes their human rights, the full commencement of the 2015 Act is very much welcomed.
Further information on the Act and the Decision Support Service is available on the Decision Support Service’s website.
