Decision Making Act

Reformed Legislation

The Assisted Decision Making Capacity Act 2015 reformed legislation dating to the 19th century on the civil aspects of mental capacity. See the separate chapters on long-standing wards of courts legislation. The legislation was passed with reference to the protections afforded by the European Convention on Human Rights and Fundamental Freedoms.

A Director of the Decision Support Service is established for persons who require or may shortly require assistance in exercising decision-making capacity. The legislation amends the law on enduring powers of authority and provides for ratification by the State of the Convention on the International Protection of Adults and for related matters.

The Act provides for the appointment by persons of others to assist in decision-making or to make decisions jointly. It provides for applications to the Circuit Court, principally and also to the High Court, for the appointment of decision-making representatives.

The legislation provides for the making of advanced healthcare directives by persons of their wish and preference concerning medical treatment decisions when they subsequently come to lack capacity. It provides for the appointment in advance health care directives of designated healthcare representatives with power to ensure that the advance health care directives are complied with.

Assessment of Capacity

Under the legislation, a person’s capacity is to be assessed based on their ability to understand, at the time that a decision is made, the nature and consequences of the decision made in the context of the available choices at that time. A person lacks mental capacity 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 his or her decision or if the implementation of the decision requires the Act of a third party, to communicate by any means with that third party.

A person is not to be regarded as unable to understand information relevant to the decision, if he or she is able to understand an explanation of it, given in a way that is appropriate to his circumstances, including through the use of clear language, visual aids or other means.

The fact that a person is able to retain the information relevant to the decision for a short time only does not prevent him or her from being regarded as having the capacity to make the decision. The fact that a person lacks capacity in respect of a decision on a particular matter at a particular time does not prevent him or her from being regarded as having the capacity to make decisions on the same matter at another time.

The fact that a person lacks capacity in respect to a decision on a particular matter does not prevent him from being regarded as having the capacity to make decisions on other matters.

Information relevant to a decision is to be interpreted as including information about the reasonably foreseeable consequences of each of the available choices at the time the decision is made, or the reasonably foreseeable consequences of failing to make the decision.

Court Jurisdiction

The Circuit Court has exclusive jurisdiction under the Act. The relevant Circuit Court is that for the area in which the relevant person is residing or carrying on business, which is subject of the application or has resided during the period of three years prior to the application. The applications may be made to such office attached to the Circuit Court or in such combined court office within the circuit or in such office of the Courts Service as is designated.

An act regarding the donation of an organ from a living donor shall, where the donor lacks capacity, be determined by the High Court. Where an application in connection with the withdrawal of life-sustaining treatment from a person who lacks capacity comes before the courts, it shall be heard by the High Court.

The legislation does not permit a person to give consent for a non-therapeutic sterilisation procedure to be carried out on a person who lacks capacity.

Nothing in this Act affects the inherent jurisdiction of the High Court to make orders for the care, treatment or detention of persons who lack capacity.

Making Intervention

There are guiding principles that apply before and during an intervention in respect of persons who lack the requisite capacity. The principles apply for the purpose of intervention in respect of such persons. The “intervener” may be the court, the co-decision-making assistants, co-decision maker, decision-making representative, attorney, designated healthcare representative, Director, special visitor or general visitor or healthcare professional.

The principles apply for the purposes of intervention and the intervener is to give effect to these principles. It is presumed that the person concerned has capacity until the contrary is shown in accordance with the Act.

A person is not considered unable to make a decision in respect of a matter unless all practicable steps have been taken, without success, to help him to do so. A person is not considered unable to make a decision in respect of a matter concerned merely by reason of making, having made or being likely to make an unwise decision.

There is to be no intervention in respect of a person unless it is necessary to do so having regard to his or her individual circumstances. An intervention shall be in a manner that minimises the restriction of the person’s rights and freedoms of action.

Rights and Dignity of Subject

Intervention shall have due regard to the need to respect the rights of the person to dignity, bodily integrity, privacy, autonomy and control over his or her financial affairs. It shall be proportionate to the significance and urgency of the matters concerned and shall be limited in duration in so far as practicable,  taking account of the particular circumstances.

The person intervening shall permit, encourage and facilitate, in so far as practicable, the person concerned to improve his or her ability to participate, insofar as possible. He shall give effect, in so far as practicable, to the past and present will and preferences of the person, in so far as that will or those preferences are reasonably ascertainable.

He shall take into account the beliefs and values of the person, in so far as they are reasonably ascertainable, and any other factors which a person would be likely to consider if he were able to do so, in so far as such factors are reasonably ascertainable.

Unless the intervener reasonably considers that it is not appropriate or practicable to do so, he shall consider the views of any person named by the person affected as a person to be consulted on the matter concerned or on any similar matter, and the views of any decision-making assistant, co-decision-maker, decision-making representative or attorney of the person concerned.

Principles of Intervention

It shall be presumed that the person concerned has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of the Act.

The intervener shall act in good faith and for the benefit of the person concerned at all times. He shall consider all other circumstances of which he is aware and which it would be reasonable to regard as relevant.

The intervener, in making an intervention, may consider the views of persons engaged in caring for the person, any person who has a bona fide interest in the welfare of that person, and views of healthcare professionals. In the case of a person who lacks capacity, regard shall be had to the likelihood of the recovery of the relevant person’s capacity in respect of the matter concerned, and the urgency of making intervention prior to such recovery.

In making an intervention, the intervener shall not attempt to obtain relevant information that is not reasonably required for making a decision concerned, shall not use the information for a purpose other than that in relation to decision making, and shall take reasonable steps to ensure that relevant information is kept secure from unauthorised access, use or disclosure, and is safely disposed of when he or she believes it is no longer required.

Existing Wards

The Assisted Decision Making Capacity Act preserves existing orders under the previous wardship legislation, prior to the commencement of the Act. Pending a declaration under the 2015 Act, the wardship jurisdiction continues to apply.

An application for a declaration in relation to a ward who has is 18 years or more at the commencement of the legislation, may be made with the consent of the wardship court

• by the ward,
• a relative or friend of the ward who has such personal contact with the ward over such period of time that a relationship of trust exists or
• such other person as appears to the wardship court to have sufficient interest or expertise in the matter.

Notwithstanding the above, the wardship court shall, within three years of commencement of the Act, make a declaration in relation to wards who are over 18 years of age. Where the ward attains 18 years in that period, the application and declaration are to be made within six months.

The wardship court, on an application being made, shall declare whether the ward lacks capacity. If it does declare that the ward lacks capacity, then the court may make a declaration that the ward lacks capacity, unless the assistance of a suitable person as co-decision-maker is made available or may declare that the ward lacks capacity, even if the assistance of a suitable co-decision-maker is made available.

Substitute Orders under Act

Where the wardship court declares that the ward does not lack capacity, it shall discharge the wardship and return all property and assets to the ward. Where it declares that the person would not lack capacity, with the assistance of a co-decision-maker, it shall on registration of the co-decision-making agreement, discharge the ward and order that the property revests in the ward.

Where no suitable co-decision-maker is available, or the co-decision agreement is not registered within the time set by the court, the court shall, subject to being able to extend time, make such orders as it may make under its general jurisdiction to make decision-making representative appointments and order that the person’s property revest.

Where the wardship court makes a declaration that the person would lack capacity even with a decision-making assistant, it shall make such orders as appropriate under the Act.

The wardship court may, after consultation with the Director, in respect of a ward over 18 or a class of ward, direct that the Director exercise his functions in relation to that ward, or class of wards. The court may make such orders as necessary to give effect.