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Mental capacity new legislation

14 Oct 2022 / Legislation Print

Decisions, decisions, decisions!

Reforming legislation to increase the rights of persons with reduced mental capacity will commence before the end of the year. John Costello welcomes its arrival – but warns about amending legislation currently before the Seanad.

The Assisted Decision-Making (Capacity) Act 2015, as amended – which will commence before the end of the year – is most welcome. It transforms our antiquated legislation (from 1871) for vulnerable persons over 18 by supporting these persons (referred to as the ‘relevant person’) in making their own decisions about their everyday lives.

It will apply in particular to over 64,000 persons with dementia, over 18,000 adults with an intellectual disability, over 15,000 patients admitted to psychiatric centres every year, and to over 2,500 wards of court. It will also apply to many more thousands of relevant persons who may need support for decision-making from time to time.

Where a relevant person’s capacity to make a decision is in question, he or she can appoint a person to assist, co-decide, or have somebody appointed to represent them for the purpose of making a decision.

Decision-support arrangements

There are three types of decision-support arrangements for the relevant person, who is always presumed to have capacity, based on their ability to make a specific decision at a specific time.

The relevant person who has substantial capacity will be able to choose someone they know and trust to be their decision-making assistant. This is written down in a ‘decision-making assistance agreement’.

The relevant person will make all decisions themselves – for example, about contacting a bank or healthcare provider, or accommodation and employment issues. The assistant will merely gather relevant information and explain it to the relevant person, who makes the decision themselves.

Co-decision maker

If the relevant person needs greater assistance, they will be able to choose someone they know and trust to be their co-decision maker. This is written down in a ‘co-decision-making agreement’. The co-decision maker’s role is to make certain decisions jointly and together with this person. Any joint decision made must reflect the wishes of the relevant person.

I have talked to parents of children with special needs about this new legislation. They are very alarmed and concerned that their son/daughter could be subject to undue influence in this regard.

Only in April this year, the All Party Oireachtas Committee on Disability recommended that independent advocates should be available to assist relevant persons in appointing a supportive decision-maker. I agree strongly with this recommendation.

Decision-making representative

The new legislation also abolishes wards of court. All existing wards of court, or relevant persons, who have no capacity to make decisions will have a decision-making representative (DMR) appointed to make decisions on their behalf by the Circuit Court. The DMR will usually be someone the person knows and trusts.

All the property and savings owned by the ward or relevant person will be placed under the control of the DMR. At present, there is over €2 billion in assets held for wards of court.

The court will make directions regarding the role and duties of the DMR. In my view, it is essential that the court, when releasing the assets to the DMR, gives direction regarding the investment strategy to be followed, for the protection of the relevant person’s assets.

If the relevant person has signed an ‘enduring power of attorney’ (EPA), the attorney will make decisions for the relevant person. There will then be no need for any of the three supportive decision-makers to be appointed.

The attorney and any of the three types of decision-supporters can make or assist in decision-making regarding the personal welfare and property and affairs of the person. Personal welfare includes healthcare.

However, amending legislation, currently before the Seanad, specifically excludes attorneys from making treatment decisions. A treatment decision is defined as “an intervention that is or may be done for a therapeutic, preventative, diagnostic, palliative or other purpose”. The All Party Committee recommended attorneys should make treatment decisions also.

Amending legislation

The amending legislation directs that every EPA must also be registered when signed. This, in my view, is not necessary, and will be an additional cost and expense. It could deter people signing an EPA in the first place. About 80% of EPAs never have to be used. In addition, both the Law Reform Commission and the Oireachtas Committee on Disability only approve registration if the attorney requires to use the EPA.

The new legislation also provides a legal framework, for the first time, for ‘advance healthcare directives’ (AHD). It is intended that persons will give directions for future medical treatment in an AHD, if they lose capacity. However, from my legal experience, only about 50% of clients who make wills also make an EPA. Less than 2% of such clients make an AHD.

All these supportive decision-makers and attorneys will be supervised by a new office, called the Decision Support Service (DSS). They will also have to submit reports and accounts, where appropriate, to the DSS, as directed in the legislation. The DSS is a new department within the Mental Health Commission.

The DSS has an excellent website with most detailed information on this new legislation (see www.decisionsupportservice.ie). It has published draft codes of practice that are most welcome. The director of the DSS will also have a role in public awareness, information and guidance, developing codes of practice, advising State bodies, making investigations, and keeping records and reports.

Ms Justice Irvine, when President of the Hight Court, handled many wardship cases. At her retirement she said: “The new regime has the potential to greatly enhance the lives of many people currently in wardship, but that will only be the case if it is properly resourced.” 

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John Costello
John Costello is a past-president of the Law Society of Ireland.