The Assisted Decision Making (Capacity) Act 2015 (the “Act”), which commenced on 26 April 2023, represents significant reform in how healthcare professionals in Ireland approach decision making capacity and consent. Almost three years since implementation, we now have the benefit of lived experience, emerging best practice and a clearer understanding of how the Act is shaping day-to-day clinical practice.

Below we seek to provide a reminder of the key provisions of the Act, outline the current position and challenges since its commencement and highlight practical considerations for healthcare professionals supporting patients in decision-making.

A shift in approach

The Act reforms Ireland’s capacity legislation with a strong emphasis on supporting decision making by adults who may otherwise have difficulty making decisions without assistance. Its guiding principles include a presumption of capacity and supporting individuals to make their own decisions. The Act moves away from a ‘best interests’ model and instead adopts a rights-based approach that prioritises the will and preferences of the individual.

This shift requires healthcare professionals to adjust both their mindset and practice, placing autonomy and support at the centre of all capacity-related interactions.

Test for capacity

Under the Act, capacity is assessed on a time specific and issue specific basis. A person may have capacity for some decisions but not for others. A person is considered to lack decision making capacity if they cannot:

1. Understand relevant information
2. Retain that information long enough to make a choice
3. Weigh up that information to make a decision
4. Communicate their decision in any form.

Healthcare professionals must also provide appropriate assistance to help patients meet these requirements where possible, including simplifying information, allowing additional time, or adapting the environment to support understanding and communication.

Decision support arrangements

The Act introduces five formal decision-support arrangements as follows:

1. Decision Making Assistance Agreement, which allows a person to appoint someone to help them understand, make and communicate decisions.
2. Co-Decision Making Agreement, which enables a person to appoint a co-decision maker to make certain decisions jointly with them.
3. Decision Making Representation Order, which is where a person lacks capacity to make decisions, even with support, and the court appoints a decision making representative to make those decisions on their behalf.
4. Enduring Power of Attorney (EPA), which allows a person with capacity, to appoint an attorney to make decisions on their behalf should they lose capacity in the future. The Act broadens EPAs to include personal welfare decisions as well as property and financial matters.  
5. Advance Healthcare Directive (AHD), which allows a person to set out their future treatment wishes in the event that they later lose capacity.

Healthcare professionals can identify whether such arrangements exist by consulting family, reviewing clinical records, or making enquiries with the Decision Support Service (DSS).

The Decision Support Service

The Decision Support Service (DSS) was established under the Act to facilitate the new regime. Its functions include promoting awareness, supervising arrangements and decision supporters, maintaining searchable registers of arrangements, investigating complaints and publishing codes of practice.

The DSS maintains electronic searchable registers for co-decision making agreements, decision making representation orders and enduring powers of attorney. Healthcare professionals are among the prescribed groups permitted to search these registers.

The DSS has also published 13 codes of practice including guidance specifically for healthcare professionals and a dedicated code for advance healthcare directives. These codes serve as the core practical reference tool for healthcare professionals.  

Current position

As of the end of January 2026, 7,823 decision support arrangements have been registered with the DSS since the commencement of the Act. EPAs constitute the majority, with 5,422 registered since April 2023. A total of 2014 decision making representation orders have been made by the courts. These orders are made by the Court on foot of Capacity Applications. Most of these applications are made to the Circuit Court but applications regarding decisions relating to certain specific matters, such as the withdrawal of life sustaining treatment, must be made to the High Court.

Whilst the initial uptake appears to have been slow with only 616 decision support arrangements registered in total within the first year, there has been a significant increase in the number of decision support arrangements registered over the past year. The number of decision making assistance agreements (202) and co-decision making agreements (185) remain comparatively low, suggesting limited public awareness and practical utilisation of these lower level supports.

Under the Act, all adult Wards shall be reviewed and discharged by 26 April 2026. All Wards will be discharged with a declaration that:

• They have capacity,
• They have capacity with the assistance of a co-decision maker, or
• That they do not have capacity even with the assistance of a co-decision maker and in those cases, a decision making representative is required.

There has been a very slow uptake in discharge applications and there remain 1,472 adult Wards, with only 326 discharged as at the end of January 2026. Of these, 35 were discharged with a declaration that they have capacity, 31 with a co-decision maker and 260 were assigned a decision making representative.

There is currently no provision to extend the 2026 deadline. However, as of the end of January 2026, all cases have been commenced for discharge, either by lodging a Notice of Motion or listing the matter before the Court for a Directions Order to commence the discharge process.  

Practical considerations for healthcare professionals

In practice, healthcare professionals most often engage with the Act in the following areas:

• Capacity assessments: particularly where individuals are entering into co-decision making agreements, decision making representation orders or EPAs. Templates for capacity reports and guidance are available through the DSS and HSE websites.
• Supporting patients and families: helping to identify whether decision support arrangements exist, accessing the DSS register when appropriate and signposting relevant codes and resources.
• Documenting decisions: maintaining clear records of assessments, discussions, and support measures is essential.

Consistency in documentation and adherence to the DSS codes is increasingly important as best-practice standards evolve.

Conclusion

The Act represents a significant shift in healthcare practice, moving from a paternalistic model to a rights based approach that respects personal autonomy and individual preference.

For healthcare professionals, the key principles remain:

• Presume capacity
• Support patients in decision making wherever possible
• Apply the functional test of capacity
• Consult the DSS codes of practice
• Maintain thorough and transparent documentation.

By embedding these principles into routine clinical practice, healthcare professionals can ensure that care provided aligns with the patient’s rights, will and preferences.

If you require advice on capacity assessments, decision support arrangements, Enduring Powers of Attorney, wardship discharge applications or compliance with the Assisted Decision Making (Capacity) Act 2015, please contact a member of our Healthcare team. We would be pleased to assist you in navigating the practical and legal complexities arising under the Act.