Background to legislation, The Assisted Decision Making (Capacity) Act 2015 and possible implications within healthcare

1. ADVANCE CARE PLANNING AND
ADVANCE HEALTHCARE DIRECTIVES
Deirdre Shanagher, Marie Lynch, Dr John Weafer, Prof
Willie Molloy, Dr Sharon Beatty, Dr Geraldine McCarthy, Patricia
Rickard-Clarke, Emer Begley, Esther Beck, Sarah Murphy
Hospice Friendly Hospitals Network Meeting June 9th 2016

2. •What would you like from todays
session?

3. Today:
• Background & Context
• The legislation – useful facts
• Key considerations to inform good practice
• Functional approach to capacity
• Decision making supports
• Advance healthcare directives
• Guidance for healthcare staff
• Case study

5. Video…
• Thinking Ahead…

6. Background:

7. The Assisted Decision Making (Capacity)
Act 2015:
• Replaces the Lunacy Regulation (Ireland) Act 1871
• Includes provision for Advance Healthcare Directives
which were previously legal under common law but had
no legislative underpinning.
• Codes of Practice/Guidelines for full implementation
required
• Minister for Justice will commence most of the Act
• Minister for Health will commence the AHD section

8. Key Changes:
Ward of Court system to be abolished - review of all wards
• New legal process to deal with decision-making for a
relevant person in respect of a relevant decision
• New - Court process
• New role and office: Director of The Decision Support
Service
• New - Panels to be established by the Director
• New - provisions for Enduring Powers of Attorneys
• New - advance healthcare directives

9. Review of wards of court:
• Within 3 years of relevant section coming into force all current
wards of court will be discharged
• Court may:
1. Declare that there is no issue with the wards decision making
capacity
OR
2. Make one or more than one of the following declarations:
• That the ward lacks decision making capacity, unless the assistance of
a suitable person as a co-decision-maker is made available to him or
her, to make one or more than one decision
• That the wards lacks decision making capacity, even if the assistance
of a suitable person as a co-decision-maker were made available to
him or her

10. Key considerations to inform good practice:
1. Develop understanding of dementia
2. Become familiar with aspects of the Assisted Decision Making
(Capacity) Act 2015, specifically in relation to:
• The Functional approach to capacity
• Advance Healthcare directives

11. Functional Approach to Capacity:
• Presumption of capacity
Responsibility of those questioning decision
making capacity to prove there is an issue…
• Time and issue specific

12. Functional Approach to Capacity:
• Understand
• Retain
• Weigh
• Communicate

13. Advance Healthcare Directives:
• A document where a person can write down what they
would like to happen in relation to certain medical care
treatments
• Only comes into force when a person loses capacity,
becomes ill and the circumstances in their advance
healthcare directive arise. (A record of advance healthcare directives will
be held by the Director of Decision Support Services).

14. Issues that may be covered in an advance
healthcare directive:
• Treatments that a person would refuse in the future – this is legally
binding
• A request for a specific treatment. This is not legally binding but must be taken
into consideration during any decision-making process which relates to treatment for the
person in question if that specific treatment is relevant to the medical condition for which
the person may require treatment.

15. What makes an advance healthcare
directive legal?
1. At the time in question a person lack decision making
capacity to give consent to the treatment
2. The treatment to be refused is clearly identified in the
advance healthcare directive
3. The circumstances in which the refusal of treatment is
intended to apply are clearly identified in the advance
healthcare directive
4. The advance healthcare directive was made voluntarily.
5. The advance healthcare directive was not altered or
revoked.
6. The person did not do anything inconsistent with the terms
of the advance healthcare directive while they had decision
making capacity.

16. Guidance for healthcare professionals:
• Always presume decision making capacity
• Help the person to maximise their decision making
capacity
• Remember that the person with dementia can choose
not to take part in the advance care planning process
• Be aware of how to assess a persons decision making
capacity if required to do so
• Gain knowledge on what steps to take if decision
making capacity is an issue
• Check existing advance care plans with the person
regularly for validity and applicability

17. Maximising decision-making capacity:
• Discuss treatment options in a place and at a time when the
person is best able to understand and retain information.
• Ask the person if there is anything that would help them
remember information or make it easier to make a decision;
such as:
• Bringing another person to healthcare meetings or
• Having audio or pictorial information about their condition
• Writing things down
• Using simple language
• Finding out how the person usually communicates
• Giving the person space to think quietly
• Involving others where necessary such as speech and language
therapists or psychologists

18. 8 Tips for Effective Communication
1. Adopt a person centred approach to
communication
2. Connect with the person
3. Consider the communication environment
4. Be aware of your own communication style and
approach
5. Use active listening
6. Use simple language
7. Focus on one question at a time
8. Clarify Information and check understanding
See G. Doc 1

19. Video…
• Having the conversation…

20. Assessing decision-making capacity:
• Consider what decision has to be made
• Do not discriminate
• Is there something currently happening that may
temporarily affect the person’s decision-making capacity
• Consider what supports have been provided
• Consider if decision-making capacity is absent even with
all practicable support

21. Assessing decision-making capacity:
• Can the person:
• Understand information relative to the decision
• Retain the information long enough to make a voluntary choice
• Use or weigh the information as part of the process of making the
decision
• Communicate their decision?

22. If decision-making capacity is an issue:
1. Support the person to be involved in the decision-
making process by engaging in capacity building and
maximising.
2. Consider the level of support that the person
requires to make the decision in question.
3. Seek evidence of previously expressed
preferences.
4. Consider which option, including not to treat, would
be least restrictive of the person’s future choices.
5. Consider the views of anyone indicated by the
person. These people may be those appointed by
the person to support them when making decisions.
6. A Consider involving advocacy support.

24. Case Study:

25. Guidance Document 2:

26. Guidance Documents:

28. Acknowledgements
Thank you and
Questions
For more information:
Deirdre Shanagher
Deirdre.shanagher@hospicefoundation.ie
 People with dementia and carers who have
contributed and advised IHF
 IHF Changing Minds Team
 Project and Expert Advisory and Governance
Groups
 Atlantic Philanthropies