Changes introduced by the Act

2015, and was prompted by the recent legal challenge in V. v Minister for Health and Ors.404 This case concerned a man with an intellectual disability, who was prevented from marrying his fiancée following an application to the High Court to have V. made a ward of the court.

405

The automatic bar on marriage has been replaced by a capacity-based assessment under the 2015 Act.

Changes introduced by the Act

The essential idea of assisted decision making is that persons with disabilities have access to assistance in their decision making, allowing them to participate in society on an equal basis.

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In the following section, the pillars of the new system of decision-making capacity will be outlined.

Assessment of Capacity under the Act Legal capacity can be described as the ‘law’s recognition of the validity of a person’s decisions.’

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Under the Act, capacity will be assessed functionally, marking a move away from status-based assessment. The status approach provided for inflexible, all-or-nothing assessments, where a person who lacked capacity to make a specific decision was held to be incapable of making any decisions at all.

A functional assessment, on the other hand, is time-specific and issue-specific — if a person is found to lack capacity in one matter, this will not mean that they will lack decision-making capacity in all matters. The functional approach provides for a rights-based approach rather than one based on medical diagnostics. Furthermore, this approach also accounts for fluctuations in capacity and allows for situations where loss of capacity is temporary or partial. By virtue of section 3(6) of The Act,

404 Irish Human Rights and Equality Commission, ‘Human Rights and Equality Commission Granted Leave to Appear as Amicus Curiae in Disability Rights Case’ (18 November 2020) < https://www.ihrec.ie/human-rightsand-equality-commission-granted-leave-to-appear-as-amicus-curiae-in-disability-rights-case/> accessed 17 January 2022. 405 Mary Carolan, ‘Repeal of 200-year-old law preventing wards of court from marrying is welcomed’ The Irish Times (Dublin, 2 February 2021). 406 Ruth Usher and Tadhg Stapleton, ‘Overview of the Assisted Decision-Making (Capacity) Act 2015: Implications and opportunities for occupational therapy’ (2018) 46 (2) Irish Journal of Occupational Therapy 134. 407 The National Safeguarding Committee, ‘Review of current practice in the use of wardship for adults in Ireland’ (2017) 45 <https://www.sageadvocacy.ie/media/1153/review-of-current-practice-in-the-use-ofwardship_dec-2017.pdf> accessed 16 November 2021.

‘The fact that a person lacks capacity in respect of a decision on a particular matter does not prevent him or her from being regarded as having capacity to make decisions on other matters.’

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Furthermore, a person’s capacity will be assessed ‘on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at that time’.

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A person will be found to lack capacity if they are unable:

‘(a) to understand the information relevant to the decision, (b) to retain that information long enough to make a voluntary choice, (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his or her decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, if the implementation of the decision requires the act of a third party, to communicate by any means with that third party.’

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The Act presumes that a person has capacity unless the contrary can be proven.411 This principle

had been previously affirmed by Laffoy J in Fitzpatrick & Anor v K & Anor.412

Forms of Assisted Decision Making under the Act The Act proposes to change the law to a functional definition, whereby capacity is assessed only in relation to the matter in question and only at the time in question.

413

The Act provides for three distinct types of decision-making assistance, allowing for a range of different support needs. Support can be provided for decisions relating to personal welfare, property

408Assisted Decision-Making (Capacity) Act 2015, s 3(6). 409Assisted Decision-Making (Capacity) Act 2015, s 3(1). 410Assisted Decision-Making (Capacity) Act 2015, s 3(2). 411 Assisted Decision-Making (Capacity) Act 2015, s 8(2). 412 Fitzpatrick & Anor v K & Anor [2008] IEHC 104. 413 Assisted Decision-Making (Capacity) Act 2015, s 3(1).

and finance, or a combination of both. All forms of assisted decision-making will be supervised by the Director of the Decision Support Service.

1. Assisted decision-making Part 3 of the Act provides for assisted decision-making. This is the lowest level of assistance, where a decision-making assistant can be appointed in cases where a person needs support to access information, to understand it, and to make and express decisions. The decision-making responsibility ultimately remains with the person being assisted. The decision-making assistant is typically a carer or a family member, and the relationship is formalised through a written decision-making assistance agreement. More than one person can be appointed as decisionmaking assistants, and the agreement may specify whether the assistants shall act jointly, jointly and severally, or jointly in respect of some manners and severally in respect of others. The agreement may be revoked by the person appointing the decision-making assistant(s) at any time.

2. Co-decision-making Part 4 of the Act provides for co-decision-making. A co-decision-maker will make decisions jointly with the person requiring support. The co-decision maker will be a trusted friend or family member and will be appointed by the person being supported. Decision-making responsibility will be shared between the person and the co-decision-maker.

A written co-decision-making agreement must be signed by both parties. The agreement will not enter into force until it has been registered in accordance with the Act. This agreement can also be revoked at any time. Co-decision-making agreements must be reviewed by the Director of the DSS, and co-decision-makers must submit a report to the Director every 12 months.

3. Decision-making representatives Part 5, Chapter 4 of the Act provides for court-appointed decision-making representatives, the highest level of decision-making assistance. If a person is found to lack capacity to make decisions even with support, the Circuit Court can appoint a decision-making representative. The decision-making representative will make decisions on behalf of the person and be solely responsible for decision-making. However, the duration and scope of their functions will be as limited as possible, and the person’s will and preferences must be considered whenever possible.

Powers of Attorney and Advanced Healthcare Directives Under the Act, a person who has capacity can make an Enduring Power of Attorney and/or an Advance Healthcare Directive to ensure that their will and preferences will be respected if they lack decision-making capacity in the future.

The Act expands the Powers of Attorney Act 1996 to include healthcare matters. A person over the age of 18 can now appoint another person over the age of 18 to act as their attorney and confer either or both of the following on them:

‘(a) general authority to act on the donor’s behalf in relation to all or a specified part of the donor’s property and affairs; or (b) authority to do specified things on the donor’s behalf in relation to the donor’s personal welfare or property and affairs, or both.’

414

An advance healthcare directive is a person’s advance expression of will and preferences concerning treatment decisions. Any person over the age of 18 can make such a directive in writing, and the Act provides that:

‘A relevant person who has attained the age of 18 years and who has capacity is entitled to refuse treatment for any reason (including a reason based on his or her religious beliefs) notwithstanding that the refusal—

(a) appears to be an unwise decision, (b) appears not to be based on sound medical principles, or (c) may result in his or her death.’

415

Requests for specific treatments are not legally binding but will be taken into consideration.416

Impact of the Act

Implementation of the Act

414 Assisted Decision-Making (Capacity) Act 2015, s 59(1). 415 Assisted Decision-Making (Capacity) Act 2015, s 83(2). 416 Assisted Decision-Making (Capacity) Act 2015, s 84(3)(a).

The traditional system of wardship has been heavily criticised for years due to its archaic nature, however, reforms introduced by the Act were stalled due to a lack of government funding.417 However, increased funding was acquired in 2021 and Roderic O’Gorman, Minister for Children, Equality, Disability, Integration and Youthhas stated that the government is ‘fully committed’ to commencing the 2015 Act.

418

Thus, the previous system of wardship will be entirely overturned by new legislation, the Assisted Decision-Making (Capacity) (Amendment) Bill 2021.

419

This legislation will amend the existing 2015 Act. According to the Department of Children, Equality, Disability, Integration and Youth, there will be improved safeguards for those using the new decisionmaking supports.

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This is with the goal of ending the current system of wardship in Ireland and implementing the 2015 Act to its fullest.

In order to facilitate this implementation, the Decision Support Service has been established. This is a new service for all adults who have difficulties with their decision-making capacity. This may include people with an intellectual disability, mental illness or acquired brain injury, as well as people with age-related conditions who may need supports to make decisions. This organisation will operate under the 2015 legislation and is due to become fully operational by July 2022 – a delay from the initial target of 2018.

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Legal and Practical Consequences of the Act The Act signals a large-scale systemic upheaval, which will have significant practical consequences for public bodies and healthcare and social professionals. It is necessary that

417 Kitty Holland, ‘Replacement Wards of the court system to be delayed without Budget funding’ The Irish Times (Dublin, 21 September 2020). 418 Dáil Deb, 26 November 2020 vol 1001. 419 ‘Wardship system to be ended by June 2022’ (Irish Legal News, 22 November 2021) <https://www.irishlegal.com/articles/wardship-system-to-be-ended-by-june-2022> accessed 10 January 2022. 420 Department of Children, Equality, Disability, Integration and Youth, ‘Press Release: Cabinet approves General Scheme of the Assisted Decision-Making (Capacity) Amendment Bill’ (Gov.ie, 22 November 2021) <https://www.gov.ie/en/press-release/b952e-cabinet-approves-general-scheme-of-the-assisted-decision-makingcapacity-amendment-bill/> accessed 10 January 2022. 421 ‘Bill to end wardship system in Ireland’ (Law Society of Ireland Gazette, 22 November 2021) <https://www.lawsociety.ie/gazette/top-stories/2021/11-november/bill-to-end-wardship-system-in-ireland> accessed 12 January 2022.

they are made aware of this legislative change and that they are provided with additional support and resources, to ensure that the intention of the Act is realised.

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The HSE and Decision Support Service responded to this necessity, conducting a series of talks for healthcare and social professionals about the Act in late 2019.

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However, we note that there should be consistent educational supports on the new system of wardship subsequent to the commencement of the Act. Hopefully, the Decision Support Service and Codes of Practice provided by the Act will fulfil their respective roles in this aspect.

Determining decision making capacity has been described as one of the most ‘conceptually and ethically challenging areas of clinical practice’.

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It must be considered that ‘capacity’ itself is considered a legal, clinical and social construct, perhaps why its inclusion in the title of the Act is in brackets.

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Additionally, it was found in the UK that comprehensive training in their capacity legislation did not necessarily result in high quality application of the requirements in practice.

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Therefore, while the Act marks a change, it is yet to be seen how effectively it will operate in Ireland.

Chapter Conclusion

The Act has been described as a ‘flawed but deeply principled’ piece of legislation.

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The recent announcement of an amendment to the Act to abolish the system of wardship is welcome, and it provides for a significantly more nuanced and compassionate treatment of those who may struggle exercising their decision-making capacity. The implementation of the Act will mark an overdue change of the wardship system in Ireland, ensuring a greater level of autonomy for persons with disabilities.

422 Ruth Usher and Tadhg Stapleton, ‘Overview of the Assisted Decision-Making (Capacity) Act 2015: Implications and opportunities for occupational therapy’ (2018) 46 (2) Irish Journal of Occupational Therapy 130. 423 Áine Flynn, ‘Foreword’ in Mary Donnelly and Caoimhe Gleeson (eds), The Assisted Decision-Making Capacity Act 2015: Personal and Professional Reflections (HSE, 2021). 424 Ruth Usher and Tadhg Stapleton, ‘Overview of the Assisted Decision-Making (Capacity) Act 2015: Implications and opportunities for occupational therapy’ (2018) 46 (2) Irish Journal of Occupational Therapy 130. 425 Ruth Usher and Tadhg Stapleton, ‘Overview of the Assisted Decision-Making (Capacity) Act 2015: Implications and opportunities for occupational therapy’ (2018) 46 (2) Irish Journal of Occupational Therapy 130. 426 Daniel Ratfliff and Melanie Chapman, ‘Health and social practitioners experiences of assessing mental capacity in a community learning disability team’ British Journal of Learning Disabilities (2016) 44(4) British Journal of Learning Disabilities 329. 427 Áine Flynn, ‘Foreword’ in Mary Donnelly and Caoimhe Gleeson (eds), The Assisted Decision-Making Capacity Act 2015: Personal and Professional Reflections (HSE, 2021).