“No decision for me, without me”

The Assisted Decision-Making Capacity Act 2015 commenced in June 2022 with the abolishment of the Ward of Court system.  It applies to everyone and is relevant to all legal, financial, health and social care professional services. The Act respects the individual’s rights, giving them control over their own affairs, protecting their autonomy and promoting person-centred care.  

For years, the designated next of kin had no legal authority in decision-making for a relative. This act provides an opportunity for a person’s family member or trusted friend to step into a more formal role (decision supporter) where a person cannot speak for themselves or needs support, with an emphasis on the person’s will and preferences. A decision supporter has the authority to help with certain decisions about a person’s personal welfare, property and money matters. The type of support they can provide depends on the decision support arrangement in place. 

The Act places a legal requirement on service providers to enable a person to maximize their decision-making powers. A person whose capacity is in question or may shortly be in question shall not be considered unable to make a decision unless all practicable steps have been taken to help them do so. 

As well as providing a regulatory role, the Decision Support Service (DSS), established under the Act,  will provide an advice and support service.  The DSS will have the power to investigate complaints in relation to the actions of any decision supporter in relation to their function in that role.   

Supported decision-making 

Three levels of supported decision-making are being introduced: a decision-making assistant assists the person in accessing information or discussions about their welfare, property or affairs, but does not make a decision for the person; a co-decision maker makes joint decisions with an individual; and a decision-making representative is a substitute decision-maker supporting the will and preference of the person.  

Future planning 

The Act provides for a person with the capacity to plan ahead for a time in the future when they lack capacity via an Enduring Power of Attorney (EPA) or Advanced Healthcare Directive. A person may appoint an attorney (person of trust) under an EPA, to make specified decisions about their welfare, property, and finances.   

An Advanced Healthcare Directive allows a person to set out their wishes regarding future treatment requests or refusals. A person can appoint a designated healthcare representative to make healthcare decisions on their behalf when they lack capacity, including refusal of life-sustaining treatment. A person cannot direct refusal of basic care such as oral hydration/nutrition and shelter. A directive requesting treatment must be taken into consideration by healthcare professionals. If health professionals do not comply with a treatment request, they must document the reasons and provide these to the designated healthcare representative (if any) as soon as possible, and no later than 7 working days after a decision.  

Functional Capacity assessment  

The default position is that you always assume a person has the capacity to make decisions for themselves. Where this is called into question, the Act introduces the Functional Capacity Assessment. Capacity will be assessed only in relation to the matter in question and only at the time in question. This capacity assessment can be done by any registered medical professional and/or health and social care professional. An assessment of capacity and additional supporting statements are required before the instruments are registered with the Decision Support Service.  The DSS has an IT-based application process, and it is envisaged the process will be paperless.  

There is a need to understand and explore where, by whom and how these functional assessments of capacity will be conducted. Some consideration must be given to the additional resources required within the health service to take on these new assessments. 

This Act has implications for how all health and social care professional bodies provide training and education to keep health care professionals up to date, including implications for continuous professional development for doctors.  Educational resources are available from the HSE and the DSS. As the HSE and DSS roll out more updates and education, we will keep you updated on progress.