The Assisted Decision Making (Capacity) Act reforms the law relating to persons who require or may require assistance in exercising their decision-making capacity. Key reforms include the establishment of the Decision Support Service (DSS), abolition of wardship, statutory functional test of capacity, statutory guiding principles, new decision supporters, and advance healthcare directives.
Health and social care workers are expected to take all practical steps to help a person make a decision for themself. If a person is found to lack decision-making capacity in one matter, this will not necessarily mean that the person also lacks capacity in another matter. The Act recognises that capacity can fluctuate in certain cases.
Capacity is defined as the person’s ability to understand, at the time 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. A functional assessment of capacity may be necessary to determine a person’s ability to make a decision.
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What are the key reforms?
There are a number of reforms within the Act, but a few key items to highlight include:
- The Act applies to everyone and to all health and social care settings.
- It provides for the individual’s right of autonomy and self-determination to be respected through an Enduring Power of Attorney and an Advance Healthcare Directive – made when a person has capacity to come into effect when they may lack decision-making capacity.
- It provides for legally recognised decision-makers to support a person maximise their decision making powers.
- It places a legal requirement on service providers to comprehensively enable a person make a decision through the provision of a range of supports and information appropriate to their condition.
- It abolishes the Wards of Court system.
- It provides for a review of all existing wards to either discharge them fully or to transition those who still need assistance to the new structure.
- It repeals the Lunacy regulations governing the Ward of Court system.
- It establishes a Decision Support Service with clearly defined functions which will include the promotion of public awareness relating to the exercise of capacity by persons who may require assistance in exercising their capacity.
- The Director of the Decision Support Service will have the power to investigate complaints in relation to any action by a decision-maker in relation to their functions as such decision-maker.
Plans for Commencement
The Assisted Decision Making (Capacity) Act was signed into law on 31 December 2015. Progress on the Bill will resume in the Houses of the Oireachtas as early as possible following the beginning of the autumn session, and it remains the intention and firm commitment of Government to commence the 2015 Act in full as soon as possible.
The reforms and benefits provided in the Act will require changes for staff and services to ensure successful implementation of these welcome reforms and to adequately deliver on the intended benefits.
Substantial work and preparation has taken place to date within the HSE.
This work has included:
- Training and Education (including e-Learning programmes and Webinars)
- Guidance and Documentation (Codes of Practice, updated website content, revised HSE National Consent Policy)
- Impact Assessment and Implementation Plan
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