Important new legislation on assisted decision making is expected to become operational later this year. The Assisted Decision-Making (Capacity) Act 2015, which was enacted in December 2015, sets out a number of options for people who need to make decisions about important issues but who might be unable to do so due to lack of mental capacity.
How will capacity be determined?
The legislation will bring about a new test for the assessment of a person’s legal capacity. A person’s capacity will be assessed based on their ability to understand:
(a) at the time that a decision is to be made,
(b) the nature and consequences of the decision to be made by him or her in the context of the available choices at that time.
This means that a person’s capacity will be based on the specific issue that they are being asked to make a decision on and their capacity will be assessed at the particular time that that decision is made. A person will not have capacity if they are unable to understand information relevant to the decision or retain that information long enough to make a choice or to communicate the decision.
What are the Guiding Principles under the Act?
The 2015 Act sets out 10 Guiding Principles which are to apply in the operation of the Act.
Notable Principles include:
- The Principle that a person is presumed to have capacity unless it is shown that they do not have capacity.
- The Principle that a person is not to be considered unable to make a decision merely because they have made or are likely to make an unwise decision.
- Guiding Principle 5 provides that there shall be no intervention in relation to a person unless it is necessary to do so having regard to that person’s circumstances.
What guidance do the Guiding Principles provide on intervention?
The Guiding Principles also state that any intervention that is made shall be done in a manner that minimises the restriction of the person’s rights and freedom of action. It is absolutely essential that the rights of the person in relation to their dignity, bodily integrity, privacy and autonomy are fully respected.
The Guiding Principles provide that any person who intervenes in relation to assisting a person to make a decision must do so in such a way that permits, encourages and facilitates insofar as practicable the person to participate in making decisions for themselves. It is essential that the person who intervenes acts at all times in good faith and for the benefit of the person for whom the decision is to be made. The General Principles also provide that the views of any person engaged in caring for the person may be considered. This would include other family members.
What do the Principles mean for the rights of a person?
The implementation of these Principles will ensure that the rights of the person, who no longer has capacity for the particular decision, are respected and that they are encouraged insofar as possible to participate in decisions that affect them.
If you have any queries, please contact Owen Burke – o.burke@Beauchamps.ie or 01 4180 600.