What is the Assisted Decision-Making (Capacity) Act (2015)?

The Assisted Decision-Making (Capacity) Act (2015) is about supporting decision-making and maximising a person’s capacity to make decisions. This Act applies to everyone and is relevant to all health and social care services.

The act says that everyone is presumed to be able to decide for themselves unless the opposite is shown. The new law sets out ways to support people who lack capacity to make decisions. The new assisted decision-making act moves away from a ‘best interests’ approach for people who need support with decision making.

It is a move to a rights-based approach to decision making with respect for the will and preference of the person.

Under the new legislation Ward of Court will be replaced by a system of graduated supports for decision making.

This new Act will assist in complying with human-rights obligations contained in the Constitution of Ireland, the European Convention on Human Rights, and the United Nations Convention on the Rights of Persons with Disabilities. 

The Assisted Decision-Making (Capacity) Act (2015) reforms the law relating to persons who require or may require assistance in exercising their decision-making capacity.

Key reforms include the establishment of the Decision Support Service (DSS), abolition of wardship, statutory functional test of capacity, statutory guiding principles, new decision supporters, and advance healthcare directives.

RNID’s are expected to take all practical steps to help a person make a decision for themselves. If a person is found to lack decision-making capacity in one matter, this will not necessarily mean that the person also lacks capacity in another matter. The Act recognises that decision-making capacity can fluctuate, is issue-specific and time specific.

A person’s capacity to make a specific decision is their ability to:

• understand information and facts relevant to the decision;
• retain that information long enough to make a voluntary choice;
• use or weigh up that information as part of the process of making the decision; and
• communicate the decision by any means, including by assistive technology

If there is a valid reason to assess a person's decision-making capacity, a functional approach must be used. 

The Act:

• Introduces new guiding principles about interacting with a person who has decision-making capacity challenges.
• Establishes a tiered system of decision support arrangements for people who may require support making decisions
• Abolishes the current wardship system for adults and requires all adult wards of court to be discharged from wardship within three years of commencement of the Act.
• Establishes the Decision Support Service (www.decisionsupportservice.ie) with clearly defined functions in relation to the Act, including promoting public awareness.
• Provides a human rights-compliant legal framework for decision-making where a person lacks capacity to make a decision(s) and for advance healthcare directives
• Provides for legally recognised decision-makers to support a person to maximise their decision-making powers.
• The Director of the Decision Support Service will have the power to investigate complaints in relation to the actions of decision supporters appointed under the Act in relation to their role as a decision-supporter.
• Provides for the individual’s right of autonomy and self-determination to be respected
• Moves to a functional approach to the assessment of capacity – moving away from “all or nothing” status approach
• Puts the person and their will and preferences at the centre of their healthcare treatment, even when they may lack capacity to consent to treatment
• Provides improved oversight of Enduring Powers of Attorney process.

The amending bill has now passed all stages of the Seanad and was finally debated in the Dáil on the 14th December 2022. It is anticipated that all formalities will be completed by year end and the amending bill will be enacted early 2023

An announcement as to a date for commencement will be made by the Minister after the 14th December 2022. It is our understanding that it will be in the first quarter of 2023 however this is subject to Ministerial discretion.

Wardship

When the Act fully commences the Ward of Court System for Adults will be abolished.  In the interim a HSE guidance document was developed to provide a clear and consistent approach on steps required before an application for wardship of an adult is considered by the HSE. 

The Office of the Wards of Court has information on their website in relation to their plans for commencement of the Assisted Decision-Making (Capacity) Act 2015.

Currently there are approximately 2200 Wards of Court in Ireland.