Update on the Assisted Decision Making (Capacity) Act 2015

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While the Assisted Decision Making (Capacity) Act 2015 (‘Capacity Act’) has yet to come into force it is nevertheless incumbent on all persons engaged in the care of persons with intellectual disabilities and mental health issues to be familiar with the ground breaking changes it will bring to this area of law. This seminal piece of legislation, when it does take effect, will provide a statutory framework for individuals to make legally-binding agreements to be assisted and supported in making decisions about their welfare, their property and affairs.

The Capacity Act will introduce a number of reforms to Irish mental health law, including:

  • The repeal of The Lunacy Regulation (Ireland) Act 1871 and other archaic mental health legislation in Ireland.

 

  • The review and discharge of people currently under the supervision of the Wards of Court system.

 

  • The introduction of a number of new roles to assist people who lack capacity to make decisions or to assist people whose capacity to make decisions is in question in making decisions.

 

  • The introduction of court appointed Decision Making Representatives to make decisions on behalf of people who lack the capacity to make their own decisions. This is to replace the Wards of Court system, with current wards to be reviewed with the intention that a Decision Making Representative instead be appointed for them. There is also the possibility that a Ward will be adjudged to be capable of making decisions on their own behalf with the assistance of one of the other structures introduced by the Capacity Act.

 

  • The introduction of Advanced Healthcare Directives (AHD). AHDs are documents in which a person will state the nature and extent of medical treatment which they wish to undergo on the presumption that they are not able to make that decision at the relevant time.

 

Establishing the Decision Support Service which will have a number of functions including promotion, raising awareness and general oversight of the roles introduced under the Act.

In October 2016, the Minister for Justice and Equality commenced a handful of provisions relating to the Decision Support Service to allow the groundwork to begin for the Capacity Act to come into force.  On the 2nd of October 2017, Áine Flynn was appointed as the Director of the Decision Support Service and subject to the passing of the pending Finance Act bringing into law the provisions of Budget 2018, Minister for Justice Charles Flanagan has allocated 3 million euro for: “This provision of funding for the Decision Support Service under the aegis of the Mental Health Commission will facilitate the implementation of the Assisted Decision-Making (Capacity) Act 2015”.

It is presumed that the Decision Support Service will now go about putting the necessary structures and administrative processes in place. Before the substantive provisions are commenced, the Director will need to, amongst other things:

  • Establish a Register of Decision Making Agreements.

 

  • Draft and publish Codes of Practice.

 

  • Establish panels for certain roles under the Act, including Decision Making Representatives

 

Conclusion

In reply to a Dail question raised by Michael Martin TD on the 30th of May 2017, the then Minister for Justice and Equality Francis Fitzgerald replied, “It is not possible at the moment to provide an exact time line for the finalisation of these commencement orders, not least because we will need to have the Director of the DSS in place to fully ascertain the time-line.”.

With the Director of the Decision Support Service now appointed, we will hopefully see some progress on these much anticipated changes.

If you have any queries in relation to the above, please contact Ronan Healy.

 

The content of this article is provided for information purposes only and does not constitute legal or other advice.