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Mental illness and cognitive disability in ADMC scope
Solicitor Aine Flynn is director of Decision Support Service

27 Apr 2023 / legislation Print

Mental illness and cognitive disability in ADMC scope

New ways of providing decision-making support services to vulnerable members of society are now available.

The commencement of the Assisted Decision-Making (Capacity) Act 2015 (ADMC Act), and Assisted Decision-Making Capacity (Amendment) Act 2022 has introduced significant legislative changes, the Courts Service has said.

The amending act was developed to streamline processes and improve safeguards in the 2015 ADMC Act and caters for a wide range of circumstances including:

  • Intellectual disability,
  • Psychiatric illness,
  • Acquired brain injury,
  • Age-related conditions, such as dementia or mental illness.

The ADMC Act provides for a assisted decision-making process to replace the substituted decision-making process under the wardship system for adults.

Presumption of capacity

The act presumes that everyone has capacity and provides mechanisms for demonstrating that someone might need support in making decisions.

The type of support needed depends on the individual’s demonstrated capacity to make decisions.

Under this new approach, people will need to make a capacity application to the Circuit Court when they are looking to appoint a decision-making representative (DMR).

The Courts Service has confirmed that forms and rules will be available, following ministerial sign-off, from https://www.courts.ie/assisted-decision-making-circuit-court.

Existing wards of court will transition to the new system immediately or over a three-year period depending on preference.

After the three-year period, the wardship system will cease to exist for adult wards.

Wardship still remains in place for minor wards.

The act also introduces a brand-new service  – the Decision Support Service which is part of the Mental Health Commission and separate from the Courts Service.

The Decision Support Service promotes the rights and interests of vulnerable members of society who may need support with decision-making.

Under the ADMC Act, this new way of providing decision-making support services, recognises that everyone’s capacity is different and every case should be treated individually.

What does this mean?

Depending on the specific circumstances, and who is seeking decision-making support services, or making capacity applications, the process may be different.

For those who have already been made a ward of court, a solicitor will need to make a discharge application to the High Court within the next three years, which will be supported by a capacity assessment carried out by a psychiatrist.

A judge of the High Court will either discharge the person to look after their own affairs or will approve an arrangement with the relevant support services, which may involve registering with the new Decision Support Service.

Referred to Circuit Court

If further court arrangements are required, the case will be referred to the Circuit Court to be progressed. 

More information is available on the Courts Service website.

From now on, where an individual is unable to make certain decisions, even with someone else’s support, a capacity application can be made to the Circuit Court to appoint a DMR.

A DMR will make certain decisions on behalf of the ‘relevant person’ – the person whose capacity is or is soon to be in question, taking into account their known will and preferences.

Applications must be brought to the Circuit Court where the relevant person:

  • Is residing at the time the application is made,
  • Is carrying on business at the time the application is made, or
  • Has resided at any time within the period of three years immediately prior to the making of the application.

Details of the Circuit Court venues nationwide can be found on courts.ie under the ‘Find Us’ section.

Information on making a capacity application can be accessed from https://www.courts.ie/assisted-decision-making-circuit-court as soon as available. 

In cases where individuals may want to put in place a decision-making assistance agreement or appoint co-decision makers to jointly make decisions with them, the Decision Support Service is available to provide the relevant services.

Equally, for those who currently do not have capacity issues but wish to plan ahead, the Decision Support Service can assist them in making an advance healthcare directive or an enduring power of attorney.

Introductory period

The ADMC Act essentially introduces new ways of working that will apply to:

  • Decision Support Service,
  • Courts Service including the Offices of Wards of Court and the General Solicitor,
  • Circuit Court offices nationwide,
  • Judiciary,
  • HSE,
  • Law Society, and various support groups. 

The Courts Service has introduced a new ICT system to make processes internally more efficient to the benefit of users, in light of this significant change.

Court rules, forms, systems and processes will all be updated in line with the new legislation.

“We are committed to working with the other services, court users, court applicants and members of the public during the introductory period to overcome any initial issues and to improve how we deliver this new service,” the Courts Service has said.

Meanwhile, Roderic O’Gorman (Minister for Children, Equality, Disability, Integration and Youth), Simon Harris (Minister for Justice), Stephen Donnelly (Minister for Health), Anne Rabbitte (Minister of State for Disability) and Mary Butler (Minister of State for Mental Health and Older People) have said that the commencement is a new and progressive, rights-based system of supported decision-making.

Under the new legislation, there will also be statutory provision for the making and recognition of advance healthcare directives.

The commencement of both acts also provides for key measures related to further compliance with the United Nations Convention on the Rights of Persons with Disabilities, the ministers said.

This includes raising of the minimum target percentage of people with disabilities to be employed in the public sector from 3% to 6%, on a phased basis, by 2025.

Minister O’Gorman stated: “This is a historic day for Ireland, when we can finally leave behind the wardship legislation of 1871.

“So many families in this country have experience of someone who has some form of capacity difficulty, whether that be temporary or longer term, whether it be related to illness, impairment, or ageing."

Retain control

“The operationalisation of the Decision Support Service will play a key role in the delivery of decision supports, the minister said, wishing director and solicitor Áine Flynn and her team luck in the critical work to come.

“I am also pleased that the commencement furthers Ireland’s international commitments under the United Nations Convention on the Rights of Persons with Disabilities.

Minster Donnelly welcomed the legal provisions for the making and recognition of advance healthcare directives.

Designated healthcare representative

Minister of State for Mental Health and Older People, Mary Butler, added: “These new measures provide protections for those experiencing diminished capacity such as from mental health difficulties or cognitive impairment such as dementia.”

“Importantly, in circumstances where someone has lost their capacity, their will and preference will then be the guiding consideration in any decisions made on their behalf.”

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