At last, the substantive provisions of the Assisted Decision-Making (Capacity) Act 2015 (the “Act”) are scheduled to commence on 21 November 2022.
This reform heralds a new era in decision-making about the welfare, proprietary and financial affairs of the most vulnerable in our society. What does it mean?
1. Abolition of the Wards of Court system and transitional provisions
The Act provides that the capacity of all existing wards will be reviewed within a period of 3 years of the commencement of Part 6 of the Act. The wardship court, following application, will be required to either declare that the ward does not lack capacity and therefore should be immediately discharged from wardship or declare that the ward lacks capacity (with or without the appointment of a Co-Decision-Maker). Those wards who, on review, are found to lack the capacity to make decisions (with or without the appointment of a Co-Decision-Maker – discussed further below) will transition to the new system. The application can be made to the wardship court at any time by the ward, the committee of the ward or, with the consent of the wardship court, by a relative or friend of the ward
Even if such an application is not made, the Act requires that within three years of the commencement of Part 6 of the Act, all existing wards will be discharged from wardship and the decision-making capacity of each person who is a ward must be reviewed by the wardship court. The Office of the Wards of Court is currently preparing for the review of all adult wards' cases, which will be carried out during the three-year transitional period.
People will no longer be known as “wards”, rather a person lacking capacity in some form will be known as a “Relevant Person”.
What should I do if I am on a Committee of a Ward?
On commencement of the Act, the Committee of a Ward will be entitled to make an application to the wardship court for a review of the person's capacity per the above.
The wardship committee should consider the timing of the application to the wardship court.
What should healthcare providers do?
If you are a healthcare facility with a Ward of Court in your care (but you are not a member of the ward's committee), you should liaise with the ward's committee to find out when it intends to bring an application to the wardship court to have the ward's case reviewed. If you cannot get any response from the Committee, you should seek advice about the next steps and options.
2. Decision Support Service (the “DSS”)
This is a new service established to help protect the rights of vulnerable people and support them in making their own decisions about personal welfare, property and financial affairs, which will become fully operational on commencement of the Act. The DSS' remit will include the regulation and registration of decision support arrangements, supervision of decision supporters, maintenance of a panel of experts who will act as decision-making representatives, special and general visitors and court friends and the investigation of complaints under the Act.
3. Statutory Functional Capacity Test
Subject to sections 3(2) to (6) discussed below, section 3 of the Act provides that a person's capacity will be assessed based on their ability to understand at the time a decision is to be made, the nature and consequences of the decision to be made in the context of the available choices at that time.
Sections 3(2) to (6) of the Act provide further guidance on the statutory functional capacity test. A person will be deemed to lack the capacity to make a decision if he or she is unable to:
- understand the information relevant to the decision;
- retain that information long enough to make a voluntary choice;
- use or weigh that information as part of the process of making the decision; or
- communicate their decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, through the assistance of a third party to communicate that decision by any means.
The manner in which information relevant to a decision is imparted needs to be tailored to an individual's needs. The Act prescribes that a person will not be regarded as unable to understand the information relevant to the decision if he or she is able to understand an explanation of it given to him or her in a way that is appropriate to his or her circumstances (whether using clear language, visual aids or any other means). The fact that a person can only retain the information relevant to a decision for a short time will not in itself prevent them from being regarded as having the capacity to make the decision. Information relevant to the decision is defined to include information about the reasonably foreseeable consequences of each of the available choices at the time the decision is made or failing to make the decision.
A finding that a person lacks capacity in respect of a decision on a particular matter at a particular time will not prevent them from being regarded as having capacity to make decisions on the same matter at another time.
Moreover, 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. Thus, a person who lacks the mental capacity to make decisions in relation to one aspect of their life, for example with respect to their finances, may not be constrained from making decisions in relation to other areas such as healthcare.
4. Distinct Levels of Decision-Making Support
The Act provides for three avenues of supported decision-making for a Relevant Person with the support and supervision of the DSS.
|Decision-Making Assistant||A person aged 18 years and over who considers that their capacity is in question or may shortly be in question can appoint another person, a “Decision-Making Assistant”, to assist them in making decisions with respect to their personal welfare and/or their property and affairs.|
|Decision-Making Assistance Agreement||The appointment is recorded in a decision-making assistance agreement. The agreement can be valid for a certain period of time, or it can be ongoing and it is possible to have more than one decision-making-assistant in the agreement. The Act also identifies events which will render a decision-making assistance agreement null and void.|
|Role||The role of the decision-making assistant is only to assist and not to make the decision on behalf of the appointer.|
|Eligibility||The Act prescribes criteria with respect to eligibility to be a decision-making assistant and the grounds for disqualification as a decision-making assistant.|
|Co-Decision-Maker||A person aged 18 years and over who considers that their capacity is in question or may shortly be in question can appoint another person, a “Co-Decision-Maker”, to jointly make decisions with them with respect to their personal welfare and/or their property and affairs.|
|Registration of the Agreement and objections||The appointment is recorded in a co-decision-making
agreement which must be registered with the DSS within 5 weeks of
the date the agreement was signed in order for it to have legal
Various persons prescribed by the Act including any spouse, civil partner or co-habitant and any adult children of the appointer must be notified in relation to an application to register a co-decision-making agreement.
They have the right to object to its registration. On receipt of an objection, the Act prescribes the procedure which must be followed by the DSS in considering whether to proceed with the registration of the agreement. This includes a review of the application by reference to specified criteria and consultation with the applicants.
The DSS' decision can be appealed to the Circuit Court.
|Eligibility to be a co-decision-maker||A co-decision-maker must be a relative or friend of the appointer who has had such personal contact with the appointer over such period of time that they have a relationship of trust. The Act identifies certain persons not eligible to be co-decision-maker.|
|Formalities of the co-decision-making agreement||The Act stipulates certain information which must be included in a co-decision-making agreement and prohibits the inclusion of a provision for the disposal of the appointer's property by way of gift. The Act also addresses execution and witnessing of a co-decision-making agreement.|
|Offences||The Act creates various statutory offences with respect to co-decision-making agreements in Section 34 which will be addressed in a separate Briefing.|
Court appointed Decision-Making Representative
|Application to the Circuit Court
If, following application (from the relevant person or specified parties who have a genuine interest in the welfare of the relevant person), the Circuit Court finds that a relevant person lacks capacity they can make a decision on behalf of a relevant person where it is satisfied that the application meets the criteria set out in section 38 of the Act, the matter is urgent or that it is otherwise expedient for it to do so.
In the alternative, it can appoint a decision-making representative for the purposes of making a decision specified by Court order on behalf of the relevant person in relation to their personal welfare and/or their property and affairs.
|Reports||In any application under Part 5 of the Act, the Circuit Court can direct reports to be furnished to it including medical reports (including reports relating the cognitive ability of a relevant person), reports relating to the circumstances of the relevant person (including financial reports and valuations of property in which the relevant person holds an interest) and reports from healthcare professionals, or other relevant experts, relating to the relevant person.|
5. Guiding Principles
Part 2 of the Act introduces a detailed and comprehensive set of ‘Guiding Principles' that will apply before and during any intervention in respect of a relevant person. The starting presumption is that the relevant person has capacity in respect of the matter concerned.
6. Advance Healthcare Directives & Enduring Powers of Attorney
In a welcome development, the Act brings in a statutory basis for “Advance Healthcare Directives” (directing future healthcare related decisions). The legal framework around Advance Healthcare Directives and the revised procedures for “Enduring Powers of Attorney” (relating to property and financial affairs and now healthcare decisions) will be considered in a separate briefing.
7. Organ donation and withdrawal of life-sustaining treatment
The High Court will determine any decision regarding the donation of an organ from a living donor where the donor is a person who lacks capacity. The High Court will also hear any application in connection with the withdrawal of life-sustaining treatment from a person who lacks capacity, applications relating to detention and the validity of an advanced healthcare directive.
Commentary – deprivation of liberty
While the Act once commenced will substantively overhaul the protection of vulnerable adults, further legislative reform is still needed in order to address deprivation of liberty safeguards. The position remains that an application will need to be made pursuant to the inherent jurisdiction of the High Court in cases where a persons' liberty needs to be deprived for their own welfare unless they fall within Sections 107 or 108 of the Act relating to a person suffering from a mental disorder who has been admitted to an approved centre pursuant to the Mental Health Act 2001.
The Department of Children, Equality, Disability, Integration and Youth confirmed that they intend to move the Assisted Decision-Making (Capacity) (Amendment) Bill 2022 through the Seanad as quickly as possible and that the 21 November 2022 has been selected as the ‘go live' date for the operation of the Act. In addition, the DSS has provided assurances that their team is ready and looking forward to engaging with service users as soon as possible.
Keeping you Informed
The Act represents a very significant reform and will be the subject of further Arthur Cox briefings in the lead up to its commencement.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.