Mental Health Commission

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Assisted Decision-Making

Capacity Assessment

The Act proposes to change the law from the current all or nothing status approach to a flexible functional definition, whereby capacity is assessed only in relation to the matter in question and only at the time in question. If a person is found to lack decision-making capacity in one matter, this will not necessarily mean that s/he also lacks capacity in another matter. The Act recognises that capacity can fluctuate in certain cases.

Who needs the Decision Support Service?

The 2015 Act sets out three different tiers of supports that could be provided to a relevant person who is faced with capacity challenges. At the lowest end of supports, the person may appoint a Decision-Making Assistant to obtain and explain information and to help the person make and express a decision. At the next level is a Co-Decision Maker, who again, provides support and information, but also makes the decision jointly with the relevant person.

At the top end is a Decision-Making Representative, who is appointed by the Circuit Court to make certain decisions on the relevant person’s behalf. Ideally, this will be someone close to the relevant person. The Act also provides improved tools for advance planning so that adults with capacity can provide for a time in the future when they might lose capacity. They can do so by way of an Enduring Power of Attorney and Advance Healthcare Directive

At all levels, the decision supporters must abide by Guiding Principles and respect the relevant person’s will and preferences. There are varying requirements around registration and reporting duties depending on the level of the arrangement.

In some cases, the 2015 Act requires that certain people must be notified if a decision support arrangement needs to be registered with the Decision Support Service. As such, the reach of the Decision Support Service will be extensive. While we all are presumed to have capacity, it is estimated that there could be over 220,000 adults in Ireland who require some level of support to help them to make decisions.

Who needs DSS?

                   Arrangement with DSS

Current Wards of Court

In summary, when relevant provisions of the Act come into operation it will no longer be possible to make a new application to make an individual a Ward of Court. The decision support options in the Act shall apply.

When Part 6 of the Act comes into operation, a wardship court will be tasked with reviewing and discharging from wardship existing Wards of Court within three years of the commencement of Part 6. Alternative decision making supports will be put in place for former Wards where deemed necessary and appropriate by the wardship court.

Enduring Powers of Attorney

When Part 7 of the Act comes into operation, it will put in place provisions similar to the Powers of Attorney Act 1996. Under the Powers of Attorney Act 1996, a person can create an enduring power of attorney appointing an attorney to make decisions on his or her behalf in relation to property and finance or personal welfare or a combination of both. The Act expands these powers to include health care matters. It requires attorneys appointed under the Act to abide by the guiding principles and to be subject to supervision by the Director of the Decision Support Service who will also have the role of registering new enduring powers of attorney.

Advanced Healthcare Directives

When Part 8 of the Act comes into operation, it will make provision for advance healthcare directives. The purpose of the advance healthcare directive is to enable a person to be treated according to their will and preferences and to provide healthcare professionals with important information about the person in relation to their treatment choices. A person may, in an advance healthcare directive, appoint a designated healthcare representative to take healthcare decision on his or her behalf when he or she no longer has the capacity to make those decisions. Designated healthcare representatives will be supervised by the Director of the Decision Support Service.

Role of the Courts

The Act provides that the Circuit Court will have jurisdiction on most issues arising under this legislation. It is anticipated that the specialist judges will undertake this work. The Act provides that the High Court will continue to have jurisdiction in relation to matters relating to withdrawal of life-sustaining treatment and donation of an organ from a living donor.

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