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:
01
A decision-making assistant is appointed by way of a decision-making assistance agreement in which a person is identified to act as a decision-making assistant to help someone to make decisions. This can be someone who the person knows and trusts and he or she can choose the decisions with which he or she requires assistance e.g. matters relating to finances, health etc.
02
This person is appointed by way of a co-decision-making agreement by which a person chooses another with whom he or she can make decisions jointly as a co-decision-maker. The role of the co-decision-maker is to make decisions together with the person.
03
A decision-making-representative is appointed by the Courts to make certain decisions for a person who requires such support taking his or her wishes into account. The Court issues a decision-making representation order which lists all the decisions that can be made by the decision-making representative. This representative can be a person known to the person requiring support or can be appointed from a panel of decision-making-representatives who are trained for this role.
For people who wish to plan for future healthcare and other decisions, there are two types of decision supporters who can be appointed to support them as follows:
04
An advanced healthcare directive is a document that sets out a person’s instructions in relation to the healthcare treatments he or she wishes to refuse, or would like to request, in the future when he or she no longer has capacity to do so. In the advanced healthcare directive, a person can choose a designated healthcare representative to make decisions on the person’s behalf in relation to the healthcare and treatment decisions as noted in the person’s advanced healthcare directive. This representative will only act on the person’s behalf if he or she loses the ability to make certain healthcare decisions for themselves.
05
An Enduring Power of Attorney is a legal document which allows a person to choose to appoint a specific individual to make decisions on his or her behalf if they lose the ability to make those decisions in the future. A person can choose someone they know and trust to be their attorney but an attorney can only act on behalf of the person if the Enduring Power of Attorney has been registered with the Decision Support Service.
The functions of the Decision Support Service, as established under the Act, include the following:
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:
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.
