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The Assisted Decision-Making (Capacity) Bill 2013: content, commentary, controversy

  • Review Article
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Irish Journal of Medical Science (1971 -) Aims and scope Submit manuscript

Abstract

Background

Ireland’s Assisted Decision-Making (Capacity) Bill (2013) aims to reform the law relating to persons who require assistance exercising their decision-making capacity. When finalised, the Bill will replace Ireland’s outdated Ward of Court system which has an all-or-nothing approach to capacity; does not adequately define capacity; is poorly responsive to change; makes unwieldy provision for appointing decision-makers; and has insufficient provision for review.

Aims

To explore the content and implications of the Assisted Decision-Making (Capacity) Bill.

Methods

Review of the content of the Assisted Decision-Making (Capacity) Bill and related literature.

Results

The new Bill includes a presumption of capacity and defines lack of capacity. All interventions must minimise restriction of rights and freedom, and have due regard for “dignity, bodily integrity, privacy and autonomy”. The Bill proposes legal frameworks for “assisted decision-making” (where an individual voluntarily appoints someone to assist with specific decisions relating to personal welfare or property and affairs, by, among other measures, assisting the individual to communicate his or her “will and preferences”); “co-decision-making” (where the Circuit Court declares the individual’s capacity is reduced but he or she can make specific decisions with a co-decision-maker to share authority); “decision-making representatives” (substitute decision-making); “enduring power of attorney”; and “informal decision-making on personal welfare matters” (without apparent oversight).

Conclusions

These measures, if implemented, will shift Ireland’s capacity laws away from an approach based on “best interests” to one based on “will and preferences”, and increase compliance with the United Nations’ Convention on the Rights of Persons with Disabilities.

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Notes

  1. For relevant case-law relating to deprivation of liberty, see: HL v UK (Bournewood) (2004) 40 EHRR 761; DD v Lithuania (2012) ECHR 254; Stanev v Bulgaria (2012) EHRR 46.

  2. Section 69 of the Mental Health Act 2001 reads: “(1) A person shall not place a patient in seclusion or apply mechanical means of bodily restraint to the patient unless such seclusion or restraint is determined, in accordance with the rules made under subsection (2), to be necessary for the purposes of treatment or to prevent the patient from injuring himself or herself or others and unless the seclusion or restraint complies with such rules. (2) The Commission shall make rules providing for the use of seclusion and mechanical means of bodily restraint on a patient. (3) A person who contravenes this section or a rule made under this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500. (4) In this section “patient” includes (a) a child in respect of whom an order under section 25 is in force, and (b) a voluntary patient”. Rules governing the use of seclusion and restraint are available on the website of the Mental Health Commission: http://www.mhcirl.ie/Mental_Health_Act_2001/Mental_Health_Commission_Rules/Seclusion_and_Mechanical_Restraint/ (website verified, 8 March, 2014).

References

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Acknowledgments

I am very grateful to the peer-reviewers for their helpful comments and suggestions.

Conflict of interest

None.

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Authors and Affiliations

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Corresponding author

Correspondence to B. D. Kelly.

Appendices

Text Box 1

Purpose of the Assisted Decision-Making (Capacity) Bill 2013 (Preamble)

  • “To provide for the reform of the law relating to persons who require or may require assistance in exercising their decision-making capacity, whether immediately or in the future”

  • “To provide for the appointment by such persons of other persons to assist them in decision-making or (subject to the approval of the Circuit Court) to make decisions jointly with such persons”

  • “To provide for the making of applications to the Circuit Court or High Court in respect of such persons, including seeking approval by the Circuit Court of co-decision-making agreements or the appointment by the Circuit Court of decision-making representatives for such persons”

  • “To enable, in specified circumstances, informal decision-making to be done in respect of such persons by other persons who are not decision-making assistants, co-decision-makers, decision-making representatives or attorneys for such persons”

  • “To provide for the appointment and functions of the Public Guardian in respect of persons who require or may shortly require assistance in exercising their decision-making capacity”

  • “To provide for the amendment of the law relating to enduring powers of attorney”;

  • “To provide for the ratification by the state of the "Convention on the International Protection of Adults”

  • “To provide for related matters”

Text Box 2

Matters relating to “personal welfare” under the Assisted Decision-Making (Capacity) Bill 2013 (Section 25)

  • “Where the relevant person should live;

  • Persons with whom the relevant person may or may not have contact;

  • The employment, training and rehabilitation the relevant person should receive;

  • The diet and dress of the relevant person;

  • The inspection of the personal papers, or a class of personal papers, of the relevant person;

  • Whether or not the relevant person may travel outside the State;

  • Granting or refusing consent to the carrying out or continuation of a treatment of the relevant person by a healthcare professional;”

  • Other matters, as the Circuit Court “considers appropriate”.

Text Box 3

Matters relating to “property and affairs” under the Assisted Decision-Making (Capacity) Bill 2013 (Section 26)

  • “The custody, control and management of some or all of the relevant person’s property or property rights;

  • The sale, exchange, mortgaging, charging, gift or other disposition of the relevant person’s property;

  • The acquisition of property in the name of the relevant person, or on his or her behalf;

  • The carrying on, on behalf of the relevant person, of any profession, trade or business which may lawfully be carried on by a person other than the relevant person;

  • The making of a decision which will have the effect of dissolving a partnership in which the relevant person is a partner;

  • The carrying out of any contract entered into by the relevant person;

  • The discharge of the relevant person’s debts or other obligations, whether or not any such debt or obligation is legally enforceable against the relevant person;

  • The execution or exercise of any of the powers or discretions vested in the relevant person as a tenant for life;

  • Providing, to the extent that the relevant person might have been expected to do so, for the needs of the decision-making representative or of other persons;

  • The conduct of proceedings before any court or tribunal, whether in the name of the relevant person or on his or her behalf;

  • Making an application for housing, social welfare or other benefits or otherwise protecting or advancing the interests of the relevant person in relation to those matters;”

  • Other matters, as the Circuit Court “considers appropriate”.

Notes:

If a decision-making representative is empowered to give gifts on behalf of the relevant person, there are subject to specific regulations [Section 26(2)].

The Circuit Court can “confer on the Public Guardian the custody, control and management of some or all of the property of the relevant person if the court considers that the Public Guardian is the most appropriate person” [Section 26(3)] and the Public Guardian must then consult appropriately (e.g. with family) in the management of the property [Section 26(4)].

Text Box 4

Roles of the Co-Decision-Maker (Section 21)

  • The co-decision-maker “shall advise the appointer respecting matters the subject or to be the subject of relevant decisions, and shall share with the appointer the authority to make relevant decisions and may do all things necessary to give effect to the authority vested in him or her”

  • “Where a relevant decision made by the appointer and a co-decision-maker for the appointer requires the signing of any document for its implementation, the document is void unless the appointer and the co-decision-maker co-sign the document”; the co-decision-maker “shall acquiesce in a relevant decision made by the appointer and shall not refuse to sign a document…if the following 2 conditions are met: (a) a reasonable person could have made that relevant decision; and (b) no harm to the appointer or any other person is likely to result from that relevant decision” (Section 19).

  • In exercising his or her functions, “a co-decision-maker for the appointer shall:

  1. (a)

    Advise the appointer by explaining relevant information and considerations relating to a relevant decision,

  2. (b)

    Ascertain the will and preferences of the appointer on a matter the subject or to be the subject of a relevant decision and assist the appointer to communicate them,

  3. (c)

    Assist the appointer to obtain any information or personal records…that the appointer is entitled to and that is or are required in relation to a relevant decision,

  4. (d)

    Assist the appointer to make and express a relevant decision, and

  5. (e)

    Endeavour to ensure that the appointer’s relevant decisions are implemented”

  • “A co-decision-maker for the appointer shall, at least once every 12 months…or within such shorter period as the court may direct, prepare and submit to the Public Guardian a report in writing as to the performance of his or her functions as such co-decision-maker.”

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Kelly, B.D. The Assisted Decision-Making (Capacity) Bill 2013: content, commentary, controversy. Ir J Med Sci 184, 31–46 (2015). https://doi.org/10.1007/s11845-014-1096-1

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