Presentation on theme: "Assisted Decision Making"— Presentation transcript:
1 Assisted Decision Making Sarah Lennon Inclusion Ireland
2 Overview The current situation in Ireland Context for Change Typical Case StudiesThe Future
3 Currently in Ireland Status Approach to Capacity Decision that someone ‘lacks capacity’Simply possessing or not possessing particular characteristicsTypically ‘all or nothing’No regard to actual capabilities to make particular decisions
4 Ward of Court Irish system – Ward of Court 1871 Lunacy Regulation Act Person who is made a Ward of Court is deemed ‘lunatic’ ‘idiot’ ‘unsound mind’Typically as a result of financesProtectionBroad restrictions
6 Ward of Court Medical Model When considering whether or not a person should be taken into Wardship, the Court must be satisfied that the person is, on the basis of the medical evidence available, mentally incapacitated and incapable of managing his or her affairs – Court Service Guide
7 Ward of CourtFinancial affairs – including bank accounts, taxation, bills, propertyConsent to medical treatment (approval)Wills (only with permission)Marriage (not permitted)Travel abroad (only with permission)Legal proceedings (with permission)Wards can be sued or prosecutred
8 ChangeChange began in 2003 with Law Reform Commission consultation on ‘Law & The Elderly’Relevance to other persons2005, Consultation Paper on ‘Vulnerable Adults & the Law’2006, Report on ‘Vulnerable Adults & the Law’
9 Change, UN Convention on the Rights of Persons with Disabilities (UNCRPD)Mental Capacity and Guardianship Bill 2007 (Seanad)Scheme of Mental Capacity Bill 2008Assisted Decision-Making (Capacity) Bill 2013
10 Functional Approach Issue Specific Time Specific Based on ability to understand the nature and consequences of a decision to be made in the context of the available choices at the time the decision is made
11 Defining CapacityAustralian State of Victoria, capacity is defined in terms of lack of capacity – Substitute ApproachIn the Canadian province of Saskatchewan, capacity is defined as the ability to understand information relevant to making a decision and to appreciate the reasonably foreseeable consequences of making or not making a decision.
12 UNCRPD Article 12 Equal Recognition Legal Capacity on an equal basis with others in all aspects of life
13 Legal Vs Mental Capacity Mental capacity is closely aligned with intelligenceLegal capacity is the ability to make decisions and have such decisions respected in all areas of life Presumption that everyone has legal capacity
15 The Assisted Decision Making Bill For people over 18It is still a Bill –may be changesDoesn’t apply to voting, marriage, membership of a jury, mental health treatment and consent to sexual relationshipsMany parts of the law are still unclear and will need a Code of Practice to explain them
16 Definition of Capacity Can You?Understand the relevant information (given in a way that is accessible to you)Remember the informationUse the information towards making a decisionCommunicate your decision (not only verbally)Applies to EVERYONE – not just people with a disability or diagnosis
17 Principles Presumption of capacity (not the other way around) Information used must be accessible to that person‘unwise’ decision does not equal lack of capacityAny Intervention must be necessary and least restrictive of your freedom, rights and dignityIndividual must participate in interventionWill and preferences (as far as practicable)Talk to others who know the person well
18 ExclusionsMarriage / civil partnership / separation/dissolution and divorceAdoption or guardianship of a childsexual relationsvoting at an election or at a referendumserving as a member of a jury.
19 Office of Public Guardian Raise awareness about UN Convention & ActSupervise assistants, co decision-makers, representatives and attorneysAppoint panels of representatives, court friends, special and general visitorsKeep a register of agreements, read reportsDeal with complaints and start investigationsGive advice to the court making a decision
20 How will Decisions be Made? by the person autonomouslyBy the person with assistanceInformally by another personBy the person with a co-decision makerBy another person (representative or attorney)By the High Court for certain decisionsOutside of the Court SystemThrough the Court System
21 Assistance Applies to persons aged over 18 The law says you must think your capacity is ‘in question or shortly may be in question’ for the agreement to be usedAssistance for personal welfare or property and affairs, or both
22 Assistance Agreements There will be a form to fill in called the ‘agreement’The ‘appointer’ is the person who chooses the ‘assistant’There can be more than one assistant but not more than one per decision to be madeIf someone else challenges your decision you can show them your agreement
23 Function of the Assistant Advises about the decisionGets the ‘will & preferences’ of the appointerHelps to communicate the decision and makes sure the person’s wishes are followedCan access relevant information needed for the decisionDoes NOT make the decision
24 Informal Decision-Making Allows someone to make an ‘everyday’ decision for someone else who they believe lacks capacityMust comply with general principlesOnly for personal welfare decisionsPaid for expenses from your moneyRestraint safeguards also apply to them.
25 Informal Decision-Making Still liable for criminal or civil negligenceMust not make a decision that goes against assistant, co decision, or representativeCan’t make a decision that only the High Court can makeRestraint safeguards also apply to them.
26 Informal Decision-Making Still liable for criminal or civil negligenceMust not make a decision that goes against assistant, co decision, or representativeCan’t make a decision that only the High Court can makeRestraint safeguards also apply to them.
27 Co-Decision Making Over 18 and capacity in question or more be shortly May be appointed by the person themselves or by courtPerson cannot have a co-decision maker appointed against their willThe individual and co-decision maker make the decision togetherRestraint safeguards also apply to them.
28 Role of the Co-Decision Maker Make any decision (specified) together with the individualAdvise the individualAscertain the ‘will and preferences’ of the personAssist the person to communicate their decisionAccess relevant personal information
29 Role of the Co-Decision Maker Must prepare an annual report for the public guardianCan receive expenses
30 Co-Decision MakingA co-decision maker must comply with the decision made by the individual appointer unlessIt is not ‘reasonable’It is harmful to themselves or others
31 Who can be a co-decision maker? a relative or friend of the who has had such personal contact, over such period of time that a relationship of trust exists between them
32 Who cannot be a Co-decision Maker? Owners, employees or agents of a nursing home, a mental health facility, or a residential facility for persons with disabilities, in which the relevant person resides
33 Powers of AttorneyYou make a ‘power of attorney’ once you are over 18. It is an agreement that someone you choose will make decision(s) for you once you consider that your capacity is or shortly may be in question.This replaces the Enduring Powers of Attorney Act If you appointed an attorney under the old law, it still applies. Otherwise, this new law applies.
34 Decision-Making Representatives Substitute Decision making – close to a guardianship modelAppointed by Court, on foot of an order or otherwiseCourt decides that a co-decision maker is not appropriate or not available
35 Who can be a Decision – Making Representative? Can be more than one person per decisionSuitable and understanding of the responsibilityOver 18 years oldThe Public Guardian will maintain a panel of suitable persons willing and able to act as decision-making representatives
36 Who cannot be a Decision Making Representative? Owners, employees or agents of a nursing home, a mental health facility, or a residential facility for persons with disabilities, in which the relevant person resides
37 Wards of CourtEveryone who was a ward before the Act will be reviewed within 3 years but can apply to court for review as soon as the Act is passedEveryone who was a ward will be discharged eventually, and a different order will be made (e.g. co decision-making or representative) but the court will decide when this will happen and will base this on the person’s capacity
38 Case StudiesMike has an intellectual disability, his mother dies without a will and he and his sister Anne inherit equally. Anne wishes to sell the property but there is concern that Mike lacks Capacity to consent.Today – Mike could be made a Ward of CourtPost Act – Mike could have a co-decision maker or personal representative
39 Case StudiesJack has an acquired brain injury following injury at birth. He receives a large sum of money in damages for his future care.Today – Court holds money pending application for wardshipPost Act – Court could appoint a co-decision maker or personal representative and review
40 Case StudiesBarry has an intellectual disability. His doctor has prescribed him medicine for high blood pressure. He is confused as to when he is to take the medication and wants some support.Today – Only Barry can give consent. Often a service provider or family member will ‘manage’ the medicationPost Act – Barry can have an ‘assistant’ of his choosing to support him