Assisted Decision Making
Sarah Lennon
Inclusion Ireland
Overview
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The current situation in Ireland
Context for Change
Typical Case Studies
The Future
Currently in Ireland
• Status Approach to Capacity
– Decision that someone ‘lacks capacity’
– Simply possessing or not possessing particular
characteristics
– Typically ‘all or nothing’
– No regard to actual capabilities to make particular
decisions
Ward of Court
• Irish system – Ward of Court
• 1871 Lunacy Regulation Act
• Person who is made a Ward of Court is
deemed ‘lunatic’ ‘idiot’ ‘unsound mind’
• Typically as a result of finances
• Protection
• Broad restrictions
Ward of Court
• Medical Model
• When considering whether or not a person
should be taken into Wardship, the Court
must be satisfied that the person is, on the
basis of the medical evidence available,
mentally incapacitated and incapable of
managing his or her affairs – Court Service Guide
Ward of Court
• Financial affairs – including bank accounts,
taxation, bills, property
• Consent to medical treatment (approval)
• Wills (only with permission)
• Marriage (not permitted)
• Travel abroad (only with permission)
• Legal proceedings (with permission)
• Wards can be sued or prosecutred
Change
• Change began in 2003 with Law Reform
Commission consultation on ‘Law & The
Elderly’
• Relevance to other persons
• 2005, Consultation Paper on ‘Vulnerable
Adults & the Law’
• 2006, Report on ‘Vulnerable Adults & the Law’
Change
• 2006-2007, UN Convention on the Rights of
Persons with Disabilities (UNCRPD)
• Mental Capacity and Guardianship Bill 2007
(Seanad)
• Scheme of Mental Capacity Bill 2008
• Assisted Decision-Making (Capacity) Bill 2013
Functional Approach
• Issue Specific
• Time Specific
• Based on ability to understand the nature and
consequences of a decision to be made in the
context of the available choices at the time
the decision is made
Defining Capacity
• Australian State of Victoria, capacity is defined
in terms of lack of capacity – Substitute
Approach
• In the Canadian province of Saskatchewan,
capacity is defined as the ability to understand
information relevant to making a decision and
to appreciate the reasonably foreseeable
consequences of making or not making a
decision.
UNCRPD
• Article 12
• Equal Recognition
• Legal Capacity on an equal basis with others in
all aspects of life
Legal Vs Mental Capacity
• Mental capacity is closely aligned with
intelligence
• Legal capacity is the ability to make decisions
and have such decisions respected in all areas
of life
• Presumption that everyone has legal capacity
The Assisted Decision Making Bill
• For people over 18
• It is still a Bill –may be changes
• Doesn’t apply to voting, marriage,
membership of a jury, mental health
treatment and consent to sexual
relationships
• Many parts of the law are still unclear and
will need a Code of Practice to explain
them
Definition of Capacity
Can You?
• Understand the relevant information (given in a
way that is accessible to you)
• Remember the information
• Use the information towards making a decision
• Communicate your decision (not only verbally)
• Applies to EVERYONE – not just people with a
disability or diagnosis
Principles
• Presumption of capacity (not the other way
around)
• Information used must be accessible to that
person
• ‘unwise’ decision does not equal lack of
capacity
• Any Intervention must be necessary and least
restrictive of your freedom, rights and dignity
• Individual must participate in intervention
• Will and preferences (as far as practicable)
• Talk to others who know the person well
Exclusions
• Marriage / civil partnership /
separation/dissolution and divorce
• Adoption or guardianship of a child
• sexual relations
• voting at an election or at a referendum
• serving as a member of a jury.
Office of Public Guardian
• Raise awareness about UN Convention & Act
• Supervise assistants, co decision-makers,
representatives and attorneys
• Appoint panels of representatives, court
friends, special and general visitors
• Keep a register of agreements, read reports
• Deal with complaints and start investigations
• Give advice to the court making a decision
How will Decisions be Made?
1.
2.
3.
4.
by the person autonomously
By the person with assistance
Informally by another person
By the person with a codecision maker
5. By another person
(representative or attorney)
6. By the High Court for certain
decisions
Outside of the Court
System
Through the Court
System
Assistance
• Applies to persons aged over 18
• The law says you must think your capacity
is ‘in question or shortly may be in
question’ for the agreement to be used
• Assistance for personal welfare or
property and affairs, or both
Assistance Agreements
• There will be a form to fill in called the
‘agreement’
• The ‘appointer’ is the person who chooses
the ‘assistant’
• There can be more than one assistant but
not more than one per decision to be
made
• If someone else challenges your decision
you can show them your agreement
Function of the Assistant
• Advises about the decision
• Gets the ‘will & preferences’ of the appointer
• Helps to communicate the decision and
makes sure the person’s wishes are followed
• Can access relevant information needed for
the decision
• Does NOT make the decision
Informal Decision-Making
• Allows someone to make an ‘everyday’ decision
for someone else who they believe lacks
capacity
• Must comply with general principles
• Only for personal welfare decisions
• Paid for expenses from your money
Informal Decision-Making
• Still liable for criminal or civil negligence
• Must not make a decision that goes against
assistant, co decision, or representative
• Can’t make a decision that only the High Court
can make
Informal Decision-Making
• Still liable for criminal or civil negligence
• Must not make a decision that goes against
assistant, co decision, or representative
• Can’t make a decision that only the High Court
can make
Co-Decision Making
• Over 18 and capacity in question or more be
shortly
• May be appointed by the person themselves or
by court
• Person cannot have a co-decision maker
appointed against their will
• The individual and co-decision maker make the
decision together
Role of the Co-Decision Maker
• Make any decision (specified) together with
the individual
• Advise the individual
• Ascertain the ‘will and preferences’ of the
person
• Assist the person to communicate their
decision
• Access relevant personal information
Role of the Co-Decision Maker
• Must prepare an annual report for the public
guardian
• Can receive expenses
Co-Decision Making
• A co-decision maker must comply with the
decision made by the individual appointer
unless
– It is not ‘reasonable’
– It is harmful to themselves or others
Who can be a co-decision maker?
• a relative or friend of the who has had such
personal contact, over such period of time
that a relationship of trust exists between
them
Who cannot be a Co-decision Maker?
• Owners, employees or agents of a nursing
home, a mental health facility, or a residential
facility for persons with disabilities, in which
the relevant person resides
Powers of Attorney
• You make a ‘power of attorney’ once you are
over 18. It is an agreement that someone you
choose will make decision(s) for you once
you consider that your capacity is or shortly
may be in question.
• This replaces the Enduring Powers of
Attorney Act 1996. If you appointed an
attorney under the old law, it still applies.
Otherwise, this new law applies.
Decision-Making Representatives
• Substitute Decision making – close to a
guardianship model
• Appointed by Court, on foot of an order or
otherwise
• Court decides that a co-decision maker is not
appropriate or not available
Who can be a Decision – Making
Representative?
• Can be more than one person per decision
• Suitable and understanding of the
responsibility
• Over 18 years old
• The Public Guardian will maintain a panel of
suitable persons willing and able to act as
decision-making representatives
Who cannot be a Decision Making
Representative?
• Owners, employees or agents of a nursing
home, a mental health facility, or a residential
facility for persons with disabilities, in which
the relevant person resides
Wards of Court
• Everyone who was a ward before the Act will
be reviewed within 3 years but can apply to
court for review as soon as the Act is passed
• Everyone who was a ward will be discharged
eventually, and a different order will be made
(e.g. co decision-making or representative)
but the court will decide when this will happen
and will base this on the person’s capacity
Case Studies
• Mike has an intellectual disability, his mother
dies without a will and he and his sister Anne
inherit equally. Anne wishes to sell the
property but there is concern that Mike lacks
Capacity to consent.
• Today – Mike could be made a Ward of Court
• Post Act – Mike could have a co-decision
maker or personal representative
Case Studies
• Jack has an acquired brain injury following
injury at birth. He receives a large sum of
money in damages for his future care.
• Today – Court holds money pending
application for wardship
• Post Act – Court could appoint a co-decision
maker or personal representative and review
Case Studies
• Barry has an intellectual disability. His doctor
has prescribed him medicine for high blood
pressure. He is confused as to when he is to
take the medication and wants some support.
• Today – Only Barry can give consent. Often a
service provider or family member will
‘manage’ the medication
• Post Act – Barry can have an ‘assistant’ of his
choosing to support him
Thank You
• Q&A