1. Assisted Decision Making (Capacity) Act 2015
Complaint Officer Training
23rd October 2017

2. What the presentation will cover?
About the Act
Key aspects of the Act
What is capacity?
Who are the legally recognised persons?
Key issues

3. The Journey 1871 Lunacy Act 2003 Who Decides & How
2003 The Law & the Elderly (LRC)
2005 Vulnerable Adults & the Law
2007 Ireland signed the CRPD
2008 Mental Capacity & Guardianship Bill
2013 Assisted Decision-Making Bill
2015 Assisted Decision-Making (Capacity) Act

5. Assisted Decision Making (Capacity) Act 2015
Signed by President 30th December 2015
Some sections have commenced
Section that establishes the Decision Support Service
Appointment of the Director of the DSS
Establishment of the Advance Healthcare Directives Multi-Disciplinary Working Group
“It’s capacity Jim, but not as we know it”

6. Codes and regulations 13 statutory codes of practice - legally binding
Number of regulations

7. Who is the Legislation For?
The Assisted Decision Making (Capacity) Act 2015 applies to everyone over the age of 18.

8. Who in Particular?
It applies to a person whose decision-making capacity is being called into question, or may shortly be called into question in respect of one or more than one matters.

9. Annually.... 10,000 people affected by stroke
10,000 sustain a traumatic brain injury
41,500 affected by dementia (projected to double in next 20 years)
1 in 4 affected by a mental health condition

10. Capacity is not a constant or a lifetime guarantee

11. What Does it Say?
It places a legal requirement on service providers to help a person to make a decision through the provision of a range of supports and information appropriate to their condition.

12. Key components Functional approach to capacity
Establishment of the Decision Support Service
Legally recognised persons:
Assisted decision-maker
Co-decision-maker,
Decision-making representative
Enduring Power of Attorney
Designated Healthcare Representative
Abolition of Wardship system
Revision of Enduring Power of Attorney system
Advance Healthcare Directives

13. Governance- The Decision Support Service
Promote awareness of the Act
Provide information to people in relation to their options under the Act for exercising their capacity
Provide information to, and provide legal oversight of the legally recognised persons
Make recommendations to the Minister on any matter relating to the operation of the Act

14. What’s happening now?
Definition of Capacity – not defined in legislation
National policies not uniformly followed in practice
Presumption of Capacity – at common law
Often ignored in practice
Next of kin
No general authority
Limited emphasis on person’s individual rights and wishes

15. What’s happening now? Right to privacy and confidentiality
Often ignored in practice
Advance Healthcare directives
Legally valid and recognised by courts
But no statutory provision/legal uncertainty
People still being registered for Wardship (13 per week)

16. Interface with existing legislation, national policy and internal policies and procedures e.g.
The National Consent Policy, 2013
The Assisted Decision Making Act 2015
Safeguarding Vulnerable Persons at Risk of Abuse, HSE, 2014
HSE Open Disclosure Policy, 2014
The Assisted Decision Making (Capacity) Act 2015 has a direct impact on a number of existing policies, schemes and guidelines in operation in health and social care services that will need to be aligned with the general principles of the legislation which includes the following (this list is not exhaustive)
In particular the National Consent Policy revision will be informed by the development of ADM guidance as Capacity is one of the constituent elements of a valid and genuine consent process.
Mental Health Act 2001
Nursing Homes Support Scheme-A Fair Deal, 2012
Your Service Your Say
Not an exhaustive list….

18. Presumption
It is presumed that the person has capacity to make their own decisions, unless it is proved otherwise

19. Support to Make a Decision
Everyone has the right to be supported to make decisions

20. Unwise Decisions
An unwise decision does not indicate a lack of capacity

21. Accessible Information
A person has the right to have accessible information in relation to a particular decision
More time to understand information
And information in a range of different formats to maximise understanding (e.g. easy to read, audio, video, text, pictures).

22. Legally Recognised Persons
The Act provides for legally recognised persons referred to as ‘interveners’ to support a person to maximise their decision making capacity

23. Retention for Short Periods
The fact that a person is able to retain information for a short period only does not prevent him/her from being regarded as having capacity to make the decision

24. Least Restrictive Interventions
There shall be no intervention unless it is necessary to do so. Any intervention must be in a manner that:
Minimises any restrictions on a person’s rights
Minimised any restrictions on freedom of action
Is as limited in duration as possible
Is proportionate to the significance and urgency
Is for the benefit of the person

25. What is Capacity?
Capacity is defined as the person’s 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

26. Functional Assessment of Capacity
The functional test focuses on how the decision is made, rather than the outcome or the consequence of the decision.
Functional approach is issue, context and time specific

27. Functional Assessment of Capacity
The functional test states that a person is unable to make a decision for himself if he is unable:
To understand the information relevant to the decision;
To retain that information for long enough to make a choice;
To use or weigh that information as part of the process of making the decision; or
To communicate their decision (whether by talking, sign language, using technology or any other means).

28. Will and Preference
If there is concern that someone lacks capacity to make a decision, it is essential that their past will and preferences are taken into consideration –
what they would have wanted to happen before they lost capacity is of importance.
The beliefs and values that that person held will have to influence any decision made.

29. Abolition of the Wards of Court
The Wards of Court system will be abolished.
There will be a review of all existing wards to either discharge them fully or to transition those who still need assistance to one of the new decision-making arrangements provided for under the Act.
This will happen within 3 years of the Act being commenced.

30. Who are the Legally Recognised Persons?
Decision-Making Assistant
Co-Decision-Maker
Decision-Making Representative
Enduring Power of Attorney
Designated Healthcare Representative

31. Decision-Making Assistant
Where a person thinks that their capacity may be called into question, they can appoint a Decision-Making Assistant (e.g. a family member) to assist them to access information or to understand, make or express decisions about their welfare, property or affairs
The Decision-Making Assistant will not make the decision on behalf of the person, the decision will be made by the person only.

32. Decision Making Assistant
A Decision Making Assistant is appointed through a formal Decision Making Assistance Agreement.
The Agreement may be revoked at any time by either party, or changed with the consent of both parties.

33. Co-Decision-Maker
Where a person thinks that their capacity may be called into question, they can appoint a co-decision-maker to help them jointly make decisions about their welfare, property or affairs
A suitable co-decision-maker is someone who knows the person well and whom they have a relationship of trust with, built over time e.g. a close friend, family member etc

34. Co-Decision Maker
Decisions are made jointly with the co-decision maker
The co decision maker must ensure that the person has all necessary information in relation to the decision(s) being made, including alternatives and likely outcomes
The will and preference of the person should be established as far as possible

35. Co-Decision Maker - Oversight
Written agreement, two witnesses
Statement by a registered medical
practitioner and such other healthcare
professional as shall be prescribed that the appointer:
Has capacity to decide to enter co-decision-making agreement,
Requires assistance in exercising decision-making in respect of the relevant decisions in the agreement, and
Has capacity to make the relevant decisions specified in the co-decision-making agreement with the assistance of the co-decision-maker;
Register and review by Director

36. Decision-Making Representative
Appointed by order of the Circuit Court for the purposes of making one or more specified decisions in relation to a person’s personal welfare (including healthcare) or his/her property and affairs.
Alternatively appointed generally to make all decisions on behalf of a person.

37. Decision-Making Representative - Oversight
Court makes a declaration that relevant person lacks capacity
Court may make an order to:
Make the decision/s if satisfied matter is urgent or it is expedient to do so
Appoint a Decision-Making Representative
In making an order, the court takes account of any EPA/AHD and insures terms are not inconsistent with EPA/AHD

38. Decision-Making Representative - Oversight
In appointing Decision-Making Representative the court will have regard to:
The known will and preferences of the person
Desirability of preserving existing relationships within family
Relationship/Compatibility between the person
and the proposed
representative
Whether proposed
representative will be able
to perform functions
Any conflict of interest

39. Enduring Power of Attorney
An Enduring Power of Attorney (EPA) is an arrangement whereby a Donor (the person who may lack capacity in the future) gives a general power to an Attorney (the person providing assistance) to act on their behalf.
This may be in respect of all or some of the person’s property and affairs, or to do specified things on the person’s behalf.

40. Enduring Power of Attorney
The EPA only comes into effect when registered with the Decision Support Service.
An objection can be made to the Director of Decision Support Service to the registration of an EPA for a number of reasons:
the unsuitability of the attorney
fraud or
undue pressure was used to induce the donor to create the EPA.

41. Advance Healthcare Directives
Sometimes known as a living will
Statement about the type and extent of medical or surgical treatment you want in the future
Comes into effect when you lack capacity

42. Advance Healthcare Directives
Can appoint a designated healthcare representative to ensure that the terms of the AHD are adhered to.
The person making the directive can refuse medical treatment in advance provided the conditions set out in the Act are satisfied.
The directive must be in writing, signed and witnessed.

43. Designated Healthcare Representative
Legally recognised as acting on the person’s behalf at a time when she / he loses capacity
Has the power to ensure that the terms of the AHD are complied with
May also be given general power to consent to and refuse treatment up to and including the refusal of life-sustaining treatment
Must keep a written record of all decisions made
Can’t delegate their powers to someone else

44. Resources and Commencement
It’s the Law…but
Key issues
Resources and Commencement

45. Implications for Practice
The Act:
Requires staff to have a robust understanding of the presumption of capacity as a starting position in decision making
Requires staff to exhaust all possibilities to enable a person to make and communicate a decision
Requires staff to identify when a person may need a legally recognised support to make a decision

46. Implications for Practice cont…
Requires staff to assess capacity using an entirely new framework
Requires staff to support a persons Advance Healthcare Directive
Requires staff to gain consent from the person only, or those who have the legal authority to act for the person

47. Challenges for Services
Low level of understanding of the impact of the Act in the system
Staff may misinterpret the spirit of the legislation
Prevailing culture of the use of third party consent
Large number of policies and procedures that need to be amended to comply with the Act
May be an increase in the numbers of inappropriate requests for capacity tests (without evidential proof)

48. Challenges for Services cont…
rise in applications to the Ward of Court process
Dissolution of the Ward of Court system will have significant implications for some services
New models of autonomy may be a challenge for staff and families
Forthcoming legislation on Deprivation of Liberty will have significant implications for particular services and practices

49. Update on Commencement:
Director of the DSS started on 2nd October – Aine Flynn
Drafting of 12 codes now underway
DSS will be established once Director is in place

50. Helpful resources www.assisteddecisionmaking.ie www.scie.co.uk

51. Citizens Information Relate document http://www
Inclusion Ireland easy to read guidance on the Act
Law Society Gazette
HSE Safeguarding Policy
SAGE website

52. Questions or support: National ADM Office
Jacqueline Grogan-
Caoimhe Gleeson-
Marie Tighe-

53. Thank you