Legal Capacity - LW6616 - 2022-2023 Assisted Decision-Making (Capacity) Act 2015, as amended by Assisted Decision-Making (Capacity) (Amendment) Act 2022

1. Legal Capacity – LW6616

2. • Current Law
– Wards of Court
– Enduring Powers of Attorney
(EPAs)
• Progress towards Reform
• New Act:
– Assisted Decision-Making
(Capacity) Act 2015
– Commentary on Act
2
Summary

3. Mary Donnelly, ‘The Assisted Decision-
Making (Capacity) Act 2015: implications
for healthcare decision-making’ (2016)
22 Medico-Legal Journal of Ireland 65
(Westlaw IE).
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Key Reading

4. HSE Explainer Video
https://vimeo.com/460498854
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5. https://youtu.be/rMd_9Hvjp9s
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6. Video - https://www.youtube.com/watch?reload=9&v=IpOblOK3IA4
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7. Mary Donnelly and Caoimhe Gleeson (eds), The Assisted
Decision-Making (Capacity) Act 2015: Personal and
Professional Reflections (2021)
http://hdl.handle.net/10468/12231
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8. 8
Wards of Court • Lunacy Regulation (Ireland) Act 1871
• Person is “of unsound mind” and incapable of managing
his/her person or property
• Powers exercised by President of High Court and
Registrar of Wards of Court
• Procedures not robust; paternalistic legislation
• A “Committee” is appointed for the ward
– E.g. person’s spouse or a solicitor
• Committee deals with property of ward on ward’s behalf
• Status approach to capacity
• The ward may not buy property, sell property, travel
abroad or marry
• But they may make a will assuming that the common law
requirements for capacity are satisfied
• No automatic reviews

9. National Safeguarding Committee, Review of
current practice in the use of wardship for adults in
Ireland (2017) (Authors: Kate Butler and
Fionnuala McGee)
https://www.lenus.ie/handle/10147/624083
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10. – Powers of Attorney Act 1996
– A Power of Attorney appoints a person, called the donee or attorney,
and invests him/her with power to act either generally or in a manner
specified on behalf of the donor who gives the power
– The EPA allows power to continue after donor loses his/her mental
capacity and contains statement that donor intends power to be
effective during subsequent mental incapacity of donor
– When EPA is executed, it has no real legal effect. It will only come into
effect when it is registered
– Application to register may only be made when attorney has reason to
believe that donor is or is becoming mentally incapacitated
– 1,234 applications in 2021 (Courts Service Annual Report)
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10

11. 11
• Once the EPA is registered, the attorney may
have power over the donor’s property,
financial and business affairs and personal
care decisions
• In personal care decisions which involve
where the donor should live, donor’s diet and
dress, social welfare benefits, etc. the
attorney must make decisions in the best
interests of the donor.
• The personal care decisions do not currently
extend to decisions on medical treatment or
surgery (but see 2015 Act – not yet
commenced - below)

12. Law Reform Commission:
• Consultation Paper on Law and the
Elderly (2003)
• Consultation Paper on Vulnerable Adults
and the Law: Capacity (2005)
• Report on Vulnerable Adults and the Law
(2005)
Department of Justice:
• Scheme of Mental Capacity Bill 2008
• Assisted Decision-Making (Capacity) Act
2015 - not yet commenced – Planned
commencement: Some time in 2023
Progress towards
reform
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13. 13
Assisted Decision-Making
(Capacity) Act 2015

14. Assisted
Decision-
Making
(Capacity) Act
2015
• Passed December 2015
• Most of the Act has not been commenced, and
will commence during 2023
• Abbreviated title in slides: ADMCA 2015
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15. 15

17. Amending Act
• Assisted Decision-Making (Capacity)
(Amendment) Act 2022
• Not yet commenced
• Revised version of 2015 Act
– https://revisedacts.lawreform.ie/eli/2015
/act/64/front/revised/en/html
– [2022 amendments not yet incorporated]
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18. Capacity means decision-making capacity
Personal welfare or financial issues
Operate bank account, spend money,
decide where to live, make medical
decision
Capacity is to be construed functionally –
ability to understand nature and
consequences of decision at time decision is
made
Person lacks capacity if unable to
• Understand info relevant to decision
• Retain that information
• Use/ weigh that information
• Communicate his/her decision, perhaps with
assistance or through a third party
Act recognises that sometimes person may only
be able to retain info for short period only
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19. “Intervener” means
• A decision-making assistant
• A co-decision-maker
• A decision-making representative
• An attorney (under Enduring Power of
Attorney)
• A healthcare professional
• a member of any health or social care
profession whether or not the
profession is a designated profession
within the meaning the Health and
Social Care Professionals Act 2005
• A court
• A designated healthcare representative
• The Director of the Decision Support Service
• A special visitor or general visitor
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Intervener

20. • Presumption of capacity unless
contrary shown
• All practicable steps must be taken to
help person to make decision
• Making an unwise decision does not
make person unable to make decision
• Interventions should only be made
where necessary
• Interventions must minimise
restrictions and respect dignity, bodily
integrity, privacy and autonomy
• Intervener (e.g. person helping with
decision) shall facilitate person to
participate
… Cont’d >
Guiding
Principles
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21. Intervener shall
• give effect to person’s past and present will and
preferences
• take into account person’s beliefs and values
• consider views of any person named by person
• consider views of decision-making assistant, co-
decision-maker, decision-making rep. or attorney
Intervener may consider views of carers; people with
bona fide interest in person’s welfare; healthcare
professionals
[Act does not contain a ‘best interests’ test]
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22. 22
Decision-Making
supports
Co-Decision Maker (CDM)
Decision-Making Assistant (DMA)
More
formalities
Substitute decision-
maker appointed by
person before he/she
loses capacity
Enduring Power of Attorney (EPA) Donor -- >
Attorney
Substitute decision-
maker appointed by
court
Advance Healthcare Directive
Decision-Making Representative (DMR)
May also include
Designated
Healthcare
Representative
(DHR)
Refuse or request
treatment in advance

23. • Person may appoint a DMA to assist
them in making decisions re
personal welfare or property and
affairs or both
• Person must consider their
capacity is in question or may
shortly be in question
• DMA can assist person in obtaining
info; explain info; ascertain will and
preferences of appointer; ensure
appointer’s decisions are
implemented
• Notify office of Director of Decision
Support Service
Decision-
making
assistant
(DMA)
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Photo by Joshua Earle from Unsplash CC0

24. • Person appoints CDM to jointly make
decisions with them
• CDM must be trusted relative/ friend
• Doctor must state person has capacity
• Director of Decision Support Service
registers the co-decision-making
agreement
• Relevant family, etc., are notified of the
application to register (s.21).
Co-Decision
Maker
(CDM)
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25. 0 Circuit Court appoints DMR for person
0 Person lacks capacity to make decisions, even with CDM
0 DMR may make decisions
0 This is substitute decision-making
0 Supervised by office of Decision Support Service
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26. 0 Donors or Attorneys must apply to office of Decision
Support Service for registration of EPA within 3
months of the making of the EPA
0 Attorneys will later notify DSS, when person lack
capacity
0 Annual reports to DSS
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27. 0 Advance Healthcare Directives
0 An advance expression made by the person of his/her
will and preferences concerning treatment decisions
that may arise if he/she subsequently lacks capacity
0 Must be signed and witnessed
0 (Does not require medical evaluation before being
made)
0 Also signed by Designated Healthcare Representative
(DHR), if one is named
[e.g. friend or relative]
0 If person is detained under likelihood of harm ground
(s.3(1)(a) 2001 Act), AHD need not be complied with
regarding refusal of mental health treatment
0 [The point above was changed in the amending Act, 2022]
0 General law on assisted suicide still applies
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28. 0 Psychological Society of Ireland, Special Interest Group in Human Rights
& Psychology
0 https://www.psychologicalsociety.ie/groups/Special-Interest-Group-in-
Human-Rights--Psychology
0 Rogers Elaine, Pilch M, McGuire BE, Flynn E, Egan J. Psychologists'
perspectives on supported decision making in Ireland. Journal of
Intellectual Disability Research 2020;64(3):234-245.
https://go.exlibris.link/lRttSH5H
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29. 29

30. Commentary on Bill:
0 Blog Posts by Lucy Series; Eilionóir Flynn; Darius
Whelan; Mary Donnelly
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31. 0 No explicit reference to "best interests" - a major
advance on the 2008 Heads of the Bill.
0 The "best interests" principle has been interpreted in
such a paternalistic manner by the Irish courts that it
would have been unworkable in the Capacity Bill.
What's more, it's out of step with modern thinking on
the Convention on the Rights of Persons with
Disabilities (CRPD).
0 The CRPD is explicitly recognised in the functions of
the DSS.
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32. 0 It is a real pity that the Bill does not establish
multidisciplinary tribunals for dealing with
applications regarding lack of capacity, etc. A three-
person tribunal similar to the Mental Health Tribunals
would be a more suitable forum than the Circuit Court
for resolution of these issues.
0 The Bill does not fully resolve the issue of people who
lack capacity and are admitted to a residential centre
on a "voluntary" basis but are de facto detained in the
centre.
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33. 0 The Bill creates forms of substitute decision-making,
most clearly with the court appointment of a
Decision-Making Representative (ss.23-27). Because
of Article 12 of the CRPD (which Ireland has not yet
ratified), regimes of substitute decision-making
should be avoided as much as possible and this Bill
may not go far enough to comply properly with the
CRPD (for more detailed critique on this aspect see
blog posts by Eilionóir Flynn and Lucy Series).
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34. 0 The Bill does not provide for automatic legal
representation in any category of case. Instead, the
person will need to apply for legal aid through the
civil legal aid legislation. This contrasts sharply with
the automatic representation under the Mental Health
Act 2001.
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35. Deprivation of Liberty Safeguards
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36. 36

37. 37

38. 0 D.Whelan screencast on DOLS (2017) – Link
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39. d.whelan@ucc.ie
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