The Assisted Decision Making (Capacity) Act 2015 was signed into law on the 30 December 2015 but, until now, had never been fully commenced. A number of amendments to the Act were provided for in the Assisted Decision-Making (Capacity) (Amendment) Bill. While this Bill had been delayed in recent times it was finally signed into law by the President on 17 December 2022 paving the way for Assisted Decision- Making in Ireland.
The intention of the Act is to support people who may have capacity issues in their decision-making. The Act applies to everyone and is relevant to all health and social care services.
The Act reforms the law relating to people who require or may require assistance with their decision-making capacity. Some of the key reforms include:
O Abolishing the current wardship system for adults requiring all adult wards of court to be discharged from wardship within three years of commencement of the Act.
O Establishing the Decision Support Service (the DSS), a public body that will oversee the assisted decision-making. This is likely to commence early in 2023.
O Providing for the individual’s right of autonomy and self-determination to be respected.
O Moving to a functional approach to the assessment of capacity – moving away from “all or nothing” status approach.
O Putting the person, their will and preferences at the centre of their healthcare treatment, even when they may lack capacity to consent to treatment .
The new legislation will establish a tiered system of decision support arrangements for people who may require support making decisions. A person whose capacity is in question can avail of a three tier system of assisted decision-making:
O Decision-Making Assistance -
A person can formally appoint a decision-making assistant who retains ultimate decision-making responsibility and is supervised by the DSS.
O Co-Decision-Maker -
A person can appoint someone to make decisions on their behalf on a joint responsibility basis. The Co-Decision-Maker is subject to supervision by the DSS.
O Decision-Making Representative -
The Circuit Court can appoint a representative to make certain decisions on behalf of persons who are unable to make such decisions on their own behalf.
The Act recognises that decision-making capacity can fluctuate, is issue-specific and time specific.
Given that the Act has only recently been signed into law, we expect the Act will commence in early 2023 and more updates will follow.
