Described by many as “an Act for Everyone”, the Assisted Decision-Making (Capacity) Act 2015 (the “Act”) stands to overhaul entirely the manner in which capacity is assessed and approached in this jurisdiction. The Act is scheduled to commence this summer, with amending legislation to be commenced simultaneously.
At its core, the Act will establish a modern legal framework to support decision-making by adults who may have difficulty making decisions without support. It strengthens the rights of those individuals and focusses on maximising their potential capacity.
Decision Support Service
The Act introduces the Decision Support Service (DSS) to facilitate the new regime. The DSS will help to protect and uphold people’s rights to make their own decisions about their personal welfare, property and affairs.
The service will be based within the Mental Health Commission and its role will be to oversee and supervise decision support arrangements. This includes the monitoring of decision supporters and the service will also receive and investigate complaints made about decision supporters and decision support arrangements. The Director is also provided with significant investigative functions under the Act.
Decision Support Arrangements
Under the Act, there will be five different decision support arrangements for people who may need support to make certain decisions. The arrangements are based on different levels of support.
The Act introduces three types of support arrangements for people who currently, or may shortly, face challenges when making certain decisions. In order of increasing levels of support, these are:
- Decision-making assistance agreements
- Co-decision-making agreements
- Decision-making representation orders
The Act also provides for people who wish to plan ahead for a time in the future when they might lose the capacity to make decisions:
- Enduring Power of Attorney Agreements
- Advanced Healthcare Directives
Changes to Assessment of Capacity
The Act moves away from an approach where others get to decide what is in a person’s ‘best interest’ and moves to a rights-based approach that considers instead the will and preference (wishes and choices) of the person.
The Act will abolish wardship. All wards of court over the age of 18 will be reviewed and if they lack capacity they will be discharged from wardship within three years, and will come under the new system with a court appointed representative.
Under the Act, a person is always presumed to have capacity. In a situation where a person’s capacity is questioned, capacity will be assessed based on their ability to make a specific decision at a specific time. So, capacity is to be construed on a “functional” (i.e. time and issue specific) basis as opposed to a “status” (all or nothing) basis.
The Act formalises in law a four stage test for the determination of capacity. A person will be considered to have capacity to make a decision if they can:
- Understand information relevant to the decision;
- Remember the information long enough to make a choice;
- User or weigh up the information to make a decision; and
- Communicate their decision (this includes with assistance).
For capacity assessments where a decision needs to be made, the most appropriate person to assess capacity will often be the person with the best understanding of the specific decision that needs to be made. Doctors or healthcare professionals might assess a relevant person’s capacity to decide whether to go ahead with a treatment prior to accepting the person’s consent, however in another situation, the most appropriate person may be a solicitor, a bank official or an accountant.
In a general sense, a person is presumed to have capacity. Therefore, there should be a trigger that causes a person to consider that an assessment is necessary i.e. sufficient cause for concern. The trigger may differ depending on the significance of the decision and the level of risk to the relevant person.
Under the Act, there are certain occasions where there is a legal requirement for certain people to undertake a capacity assessment. This arises when registering a co-decision making agreement or an enduring power of attorney.
The legislation at present states that the capacity assessment when registering a co-decision making agreement or an enduring power of attorney must be undertaken by a doctor and another healthcare professional. Under the amending legislation, this requirement is due to change to suggest that a capacity assessment may be undertaken by two people, being either a doctor or another healthcare professional, although as things stand, a statement from both remains necessary.
Once commenced, the Act stands to completely overhaul how capacity is approached, by healthcare professionals, legal professionals and by society. It is very much envisaged that, in time, the codification of these principles will overhaul too our thinking and beliefs in respect of the abilities and autonomy of all individuals, regardless of circumstances.
Key changes to be effected in the amending legislation will be watched with interest in advance of the commencement day, which has yet to be confirmed.
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About the Authors
Lyn is a partner in the Healthcare team at Hayes solicitors. Lyn advises clinical practitioners and indemnity bodies in respect of the defence of medical negligence claims and also in respect of the defence of professional disciplinary matters before Committees of inquiry.
Anita’s practice covers a range of disciplines, with a particular focus on defending professionals involved in regulatory and disciplinary proceedings. Prior to joining Hayes, Anita worked at an established London firm, defending healthcare professionals in the full spectrum of healthcare litigation including regulatory proceedings, hospital disciplinary investigations, inquests, criminal litigation and clinical negligence claims.