January-20-2016 in Healthcare Law
In what has been described as a historic moment, the Assisted Decision Making (Capacity) Act was signed into law by President Michael D Higgins on 30 December 2015. The newly-enacted legislation brings about the long-awaited repeal of the Victorian-era Lunacy Regulation (Ireland) Act 1871 and the Marriage of Lunatics Act 1811. By Aoife Nally.
The Act sets out important guiding principles and legislates for supported decision-making to assist vulnerable people with limited capacity.
By way of brief overview of this complex piece of legislation, key features include:
- presumption of decision making capacity unless the contrary is shown.
- provision of tiered legal frameworks providing for the appointment of a "Decision-Making Assistant”, a "Co-Decision-Maker" and a "Decision-Making Representative". The Act sets out the parameters within which each of these classes of assistant or representative must act.
- placement of a legal requirement on service providers to comprehensively enable a person make a decision through the provision of a range of supports and information appropriate to their condition.
- establishment of a Decision Support Service tasked with the promotion of public awareness relating to the exercise of capacity by persons who may require assistance in exercising their capacity. The Director of the Decision Support Service will have the power to investigate complaints in relation to any action by a decision-maker in relation to their functions as decision-maker.
- abolition of the outdated Wards of Court system and the replacement of that system with the Office of the Public Guardian.
- review of all existing Wards within a period of three years with a view to either discharging them fully or transitioning to the new structure those who still need assistance.
- establishment of a more modern regime for Enduring Powers of Attorney made after the commencement of the Act which may relate to a donor’s property and/or personal welfare, and which may now include healthcare matters.
- provision of the first legal framework facilitating the making of legally binding Advance Healthcare Directives.
The new legislation has been welcomed universally as providing long-awaited protection and certainty for those living with and caring for adults who lack capacity.
A six month timeframe is envisaged before all aspects of the new Act become operational. We will keep you updated on developments in this area.
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