August-16-2013 in Healthcare Law
Following the publication on 17 July 2013 of the Assisted Decision Making (Capacity) Bill 2013 long awaited reform of the law relating to mental capacity and assisted decision making inched closer to reality.
Under its current format the Bill, once it becomes law, provides a definition of capacity, sets out important guiding principles and formalises a number of ways in which a person can be assisted in making decisions.
The Bill changes the existing law in favour of a flexible, functional approach based on a person’s capacity to make that particular decision at that particular time. The aim is to preserve and support decision making by adults for as long as possible. It also creates a supervised framework under which adults may delegate their decision making ability in whole or in part.
It envisages the creation of a statutory framework enabling new formal arrangements to be made by persons who consider their capacity is, or will shortly be, in question including the appointment by a person of a:
- Decision making assistant, where decision making authority is not vested in the assistant but his or her role is to assist in making decisions in relation to personal health or welfare, and/or property and financial matters.
- Co-decision maker, where decision making authority is shared jointly with the co-decision maker who can be appointed either by the person themselves or by the Court.
The Bill will enable applications to the Circuit Court for a declaration as to whether or not a person has capacity to make a decision or class of decision, alone or with assistance. The court will be able to either make the decision in lieu of the person or to appoint a decision making representative to make the decision for them. Matters related to non-therapeutic sterilisation, organ donation and the withdrawal of artificial life sustaining treatment must be brought before the High Court.
The Bill sets out the parameters in which each of these classes of assistant or representative must act.
The Bill contains a protection from liability for “informal decisions makers” in relation to personal welfare and healthcare decisions on behalf of a person with impaired capacity where there are no formal decision making arrangement in place.
Enduring powers of attorney made after commencement of the Act will be subject to a more modern regime and may relate to a donor’s property and affairs and personal welfare or both.
The current Wards of Court system will be replaced and its functions transferred to the Office of the Public Guardian. The capacity of all adult wards must be reviewed within 3 years from commencement of the Act and anyone with capacity must be discharged from wardship. The Office of the Public Guardian will also supervise decision-making assistants, co-decision makers, decision-making representatives and persons holding enduring powers of attorney.
The Bill must now make its way through the Houses of the Oireachtas before becoming law.
Please contact a member of our healthcare team if you have any queries.
Back to Full News