Assisted Decision-Making (Capacity) Bill 2013

Anselm Eldergill

1 Introduction

2 Definitions

3 Capacity

4 Statutory principles

5 Statutory mechanisms

6 Assistance agreements and co-decision-making

Headings

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§1 — INTRODUCTION

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Capacity

Is the legal ability to bear and exercise rights or to be affected by legal duties or liabilities.

RIGHTS CAPACITY

Capacity to have and exercise rights, e.g. voting, agreeing contracts, making a will.

LIABILITY CAPACITY (RESPONSIBILITIES)

Capacity to be held legally liable for contracts, torts, crimes, etc.

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Individual responsibility

‘The counterpart of freedom and autonomy is accountability for acts freely and autonomously done.’

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AUTONOMY

CAPACITYfor autonomous action

FREEDOMto act autonomously

Requires

Reduced by

LACK OF CAPACITYfor autonomous action

RESTRAINTSon autonomous action

BENEFICENCESubstitute decisionPractical assistance

Liberal obligations

RISK-BASED, JUST,LIBERAL, RULE OF LAW

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Liberty, treatment, safety

“The extent of a people's liberty to choose to live as they desire must be weighed against the claims of many other values, of which equality, or justice, or happiness, or security, or public order are perhaps the most obvious examples.” (Berlin)

Ultimately, whether individuals “should be allowed certain liberties at all depends on the priority given by society to different values and the crucial point is the criterion by which it has to be decided that a particular liberty should or should not be allowed, or that its exercise is in need of restraint.” (Dias)

Laws should be

A last resort Impose minimum powers, duties and rights Unambiguous Just As short as possible In plain English provide a mechanism for enforcing duties provide a remedy when powers are exceeded

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§2 — DEFINITIONS

Definitions

Decision ‘includes a class of decisions’

Intervention ‘an action taken under this Act … in respect of the RP by the court or High Court

Relevant person (a) a person whose capacity is being called into question or may shortly be called into question in respect of one or more than one matter, and includes such a person who is—

(i) an appointer, or

(ii) the donor of an enduring power of attorney,

(b) a person who lacks capacity in respect of one or more than one matter in accordance with the provisions of this Act, or

(c) a person who falls within paragraphs (a) and (b) at the same time but in respect of different matters, as the case requires.

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§3 — CAPACITY

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Assessing capacity

3.—(1) Subject to subsections (2) to (6), for the purposes of this Act (including for the purposes of creating a decision-making assistance agreement, co-decision-making agreement or enduring power of attorney), a person’s capacity shall be assessed on the basis of his or her ability to understand the nature and consequences of a decision to be made by him or her in the context of the available choices at the time the decision is made.

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Lack of capacity ‘to make a decision’

3.—(2) A person lacks the capacity to make a decision if he or she is unable—

(a) to understand the information relevant to the decision,

(b) to retain that information,

(c) to use or weigh that information as part of the process of

making the decision, or

(d) to communicate his or her decision (whether by talking,

writing, using sign language, assisted technology, or any

other means) or, if the implementation of the decision requires the act of a third party, to communicate by any means with that third party.

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It does not It does not matter whether matter whether the impairment the impairment or disturbance or disturbance is permanent or is permanent or temporary.temporary.

An impairment An impairment of, or a of, or a

disturbance in disturbance in the functioning the functioning of, the mind or of, the mind or

brainbrain

The person is The person is unable to make a unable to make a

decision in decision in relation to the relation to the

matter for matter for her/himselfher/himself

unableunable to communicate to communicate their decision (whether their decision (whether by talking, using sign by talking, using sign language or any other language or any other means).means).

. . .

unable to understand the unable to understand the information relevant to information relevant to the decision,the decision,

unableunable to use or weigh to use or weigh that information as part that information as part of the process of of the process of making the decision, making the decision,

unableunable to retain that to retain that informationinformation

Compare with 2005 Act

There is no reference in the 2013 Bill to an impairment or disturbance in the functioning of the mind or brain being the cause of the person’s inability to make a decision. Is this of any practical significance in terms of the range of people or actions covered? Does this stray into inherent-jurisdiction type cases?

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ScenariosScenarios

Emma is in a violent and abusive relationship from which she seems unable to extricate herself. She will not or cannot apply for an injunction.

John has an IQ of 80. He refuses cardiac surgery which the consultant tells him is necessary to address a significant risk of a fatal heart attack.

John is aged 18. He is extremely immature for his age. He does not want to go to college to continue training. His teachers and family are concerned by his failure to understand the likely consequences of this.

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Autonomy and capacity

An individual who is able to understand and retain the information relevant to the decision is nevertheless still incapacitated if s/he is ‘unable to make a decision based on that information’.

Example“some people may be unable to exert their will … because of delusions or compulsions or [some] other reason connected with their disability. The schizophrenic who cannot believe what his doctors … tell him is one example.” (Who Decides, p.13).

§4 — STATUTORY PRINCIPLES

Statutory principles2013 Bill 2005 Act

1 ‘8.—(2) It shall be presumed that a [person whose capacity is being called into question or may shortly be called into question …] has capacity in respect of the matter concerned unless the contrary is shown in accordance with the provisions of this Act.’

Same

2 ‘8.—(3) A [person whose capacity is being called into question or may shortly be called into question …] shall not be considered as unable to make a decision in respect of the matter concerned unless all practicable steps have been taken, without success, to help him or her to do so.

Same

3 ‘8.—(4) A [person whose capacity is being called into question or may shortly be called into question …] shall not be considered as unable to make a decision in respect of the matter concerned merely by reason of making, having made, or being likely to make, an unwise decision.’

Same

Statutory principles2013 Bill 2005 Act

4 ‘8.—(5) There shall be no intervention in respect of a relevant person unless it is necessary to do so having regard to the individual circumstances of the relevant person [RP].’

An act done, or decision An act done, or decision made, under the Act for or made, under the Act for or on behalf of a person who on behalf of a person who lacks capacity must be lacks capacity must be done, or made, in his done, or made, in his best best interestsinterests..

5 ‘8.—(6) An intervention in respect of a relevant person shall—(a) be made in a manner that minimises—(i) the restriction of the RP’s rights, and(ii) the restriction of the RP’s freedom of action, and(b) have due regard to the need to respect the right of the RP to his or her dignity, bodily integrity, privacy and autonomy.’

Before the act is done, or Before the act is done, or the decision is made, the decision is made, regard must be had to regard must be had to whether whether the purpose for the purpose for which it is needed which it is needed can can be as effectively achieved be as effectively achieved in a way that is less in a way that is less restrictive of the person’s restrictive of the person’s rights and freedom of rights and freedom of action.action.

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Wishes, beliefs and feelings2013 Bill 2005 Act

‘8.—(7) The intervener, in making an intervention in respect of a relevant person, shall— …

(b) give effect, in so far as is practicable, to the past and present will and preferences of the relevant person, in so far as that will and those preferences are reasonably ascertainable,

(c) take into account—

(i) the beliefs and values of the relevant person (in particular those expressed in writing), in so far as those beliefs and values are reasonably ascertainable, and

(ii) any other factors which the relevant person would be likely to consider if he or she were able to do so, in so far as those other factors are reasonably ascertainable’

The person determining what is in the individual’s best interests must consider all the relevant circumstances and, in particular, must …

Consider, so far as is reasonably ascertainable, the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity); the beliefs and values that would be likely to influence his decision if he had capacity; and the other factors that he would be likely to consider if he were able to do so.

§5 — STATUTORY MECHANISMS

Statutory mechanisms2005 Act

Advance decisions (to refuse treatment)

Lasting Powers of Attorney (PW and P&A)

Court orders Court appointed

deputies Section 5 (PW

informal)

2013 Bill

To be inserted in the Bill

Enduring Powers of Attorney (PW and P&A)

Decision-making order Decision-making

representative order Informal decision-

making (PW)

=

=

==

=- Decision-making assistance agreements- Co-decision-making agreements and orders

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Scenario – Advance decisionScenario – Advance decision

Mr Smith has suffered from schizophrenia for many years. He has been detained on a number of occasions. His consultant prescribes him Impotentox when he is acutely unwell. This has very unpleasant side-effects for him. He makes an advance decision refusing the treatment in the event he becomes incapacitated. A year later, he relapses and is admitted to hospital informally. His consultant considers that he requires a course of Impotentox.

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Scenario – EPA(1)Scenario – EPA(1)

Mr Jones has a long history of schizophrenia and many negative symptoms. He makes an EPA authorising his friend Emma to make personal welfare decisions for him should he become incapacitated. A year later, he is admitted to hospital informally and accepts treatment without really understanding what it is for. It is common ground that he is now incapacitated and Emma refuses her consent to him being given Impotentox.

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Scenario – EPA(2)Scenario – EPA(2)

Mr Jones has a long history of schizophrenia and many negative symptoms. He makes an EPA authorising his friend Emma to make personal welfare decisions for him should he become incapacitated. A year later, he relapses and is admitted to hospital, but refuses Impotentox. His consultant and Emma take the view that he is now incapacitated. She consents to him being given Impotentox, if necessary using restraint.

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Informal decision-making (PW)

An Informal decision-maker (‘IDM’) may take or authorise the taking of an action in respect of the personal welfare (including healthcare and treatment) of a relevant person [someone who lacks capacity or whose capacity is being, or may shortly be, called into question] provided that:

• The Act does not conflict with a relevant decision made by (i) the RP themselves with a co-decision-maker or with the assistance of a decision-making assistant; or by (ii) a decision-making representative; or by (iii) an attorney, which the IDM has knowledge of or ought reasonably to have knowledge of.

• If the act is intended to restrain the person, sub-ss. 27(5)-(8) are satisfied.

• The matter is not one reserved to the High Court (non-therapeutic sterilisation, withdrawal of artificial life-sustaining treatment, the donation of an organ) or closely connected to such a matter.

Compare with the 5 Section 5 ConditionsCompare with the 5 Section 5 Conditions

DEFINITION OF RESTRAINT

For these purposes, a person restrains another person if he (a) uses, or threatens to use, force to secure the For these purposes, a person restrains another person if he (a) uses, or threatens to use, force to secure the doing of an act which s/he resists, or (b) restricts their liberty of movement, whether or not they resist.doing of an act which s/he resists, or (b) restricts their liberty of movement, whether or not they resist.

11 The act is one undertaken ‘in connection with’ another’ person’s care or treatment;

22 The person doing it takes reasonable steps to establish whether the recipient has capacity;

33 S/he reasonably believes that the recipient lacks capacity;

44 S/he reasonably believes that it is in their best interests for act to be done;

55 If s/he uses restraint, s/he reasonably believes BOTH that it is necessary to do the act in order to prevent harm to the person and that the act is a proportionate response to the likelihood of their suffering harm and the seriousness of that harm.

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Scenario – Informal decisionsScenario – Informal decisions

Ms Fox has a profound learning disability and epilepsy. She is aged 17 and is being cared for in specialist accommodation during the week. Sometimes restraint is necessary to get her to take medication. Is this lawful?

Ms Fox returns home at weekends. Can her parents use restraint where this is necessary in order to get her to take her medication?

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ScenariosScenarios

A naso-gastric tube is inserted in order to treat an informal patient who suffers from anorexia nervosa.

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ScenarioScenario

The local mental health Crisis Resolution Team is visiting Ms Thomas at her home. She has been referred to the team as an alternative to formal admission to hospital. She says that she does not want to take medication. A syrup is given to her by a member of the team who says restraint can be used if she resists.

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§6 — DECISION-MAKING ASSISTANCE AGREEMENTS & CO-DECISION-MAKING

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A mezzanine?

Advance decisionsLPAs (PW and P&A)

Section 5 (PW informal) Court orders

Court appointed deputies

Decision-making assistance agreementsCo-decision-making

agreements and orders

LPAs: subject to any conditions or restrictions, and PW LPA authority

subject to lack of capacity

Court’s powers subject to capacity, deputy’s subject to capacity and

any LPA

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Trumps are …Mechanism Trumped by:

• Informal decision-making (PW)

•Not authorised to take or authorise an action which conflicts with a relevant decision made by (i) the RP with a co-decision-maker or with the assistance of a decision-making assistant; (ii) a decision-making representative; (iii) an attorney.

•Decision-making ASSISTANCE agreements

• With regard to relevant decision(s), ‘invalidated’ by a subsequent a co-decision-maker, decision-making representative or attorney

•Co-decision-MAKING agreements

•With regard to relevant decision(s), ‘invalidated’ by a subsequent a decision-making representative or attorney

• Decision-making representative order

• Powers, duties and conditions are specified by the court in the order appointing the representative, and representative may not exercise any power exercisable by an attorney

• Attorney • May be removed by the court in limited circumstances

• Decision-making order

• Subject to statutory principles and statutory framework

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Decision-making assistance agreements

Appointer Appointee Functions Notes

Appointer (an adult who considers that their capacity is, or may shortly be, in question)

Decision-making Assistant

To assist appointer re making decisions on PW [s.25(a)] and/or PA [s.26(1)(a)]

Explain relevant info and considerations; ascertain and help to communicate appointer’s ‘will and preferences’; assist appointer to obtain information and personal records s/he is entitled to; assist appointer to ‘make and express’ a relevant decision, and endeavour to ensure that relevant decisions are implemented.

Agreement must comply with regs.

Will (it appears) be in writing with notice of agreement to the PG

Agreement is partially or wholly ‘invalidated’ by a subsequent co-decision maker, decision-making rep or attorney covering the relevant decision or all relevant decisions (s.10(5).

Co-decision-making agreements

Appointer Appointee Functions Notes

Appointer (an adult who considers that their capacity is, or may shortly be, in question)

Co-decision-maker

21.—(1) … The co-decision-maker shall advise the appointer respecting … relevant decisions, …shall share the authority to make relevant decisions, and may do all things necessary ‘to give effect to the authority vested in him or her.’Explain relevant info and considerations; ascertain and help to communicate appointer’s ‘will and preferences’; assist appointer to obtain information and personal records s/he is entitled to; assist appointer to ‘make and express’ a relevant decision, and endeavour to ensure that relevant decisions are implemented.

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De

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(1)

s.15—(1) ‘The relevant person lacks capacity to make one or more than one decision specified in the application relating to their PW or PA

(a) UNLESS

(b) EVEN IF

the assistance of a suitable person as a co-decision-maker is made available to him or her’

s.17(5) The parties to the agreement (RP and co-decision-maker) consent to the making of the order

s.17(2) The agreement is made in accordance with the Act

s.17(2) The agreement is made in accordance with the will and preferences of the RP

s.17(5) There is presently no decision-making agreement but the court is satisfied both that the RP has capacity to appoint a co-decision-maker or that a suitable person is willing to be appointed.

s.17(5),s.20

The parties to the agreement (RP and co-decision-maker) do not consent to the making of the order or the appointee is ineligible

s.17(5) There is presently no decision-making agreement and the court is either not satisfied that the RP has capacity to appoint a co-decision-maker or that a suitable person is willing to be so appointed

Court is able to make such

an order

Court is unable to

make such an order

DECISION-MAKING ORDER orDECISION-MAKING REP ORDER

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Court applications under Part 4

EX PARTE LEAVE TO APPLY NOT REQUIRED BY

Relevant person or their spouse/civil partner, decision-making assistant, co-decision maker, decision-making rep, attorney

Person specified in a court order

Public Guardian

THE APPLICATION

14.—(5) An application to the court … (including an ex parte application …) shall state—

(a) the applicant’s connection with the relevant person,

(b) the benefit to the relevant person sought to be achieved by the application, and

(c) the reasons why the application is being made, in particular—

(i) the reason why the benefit to the relevant person sought to be achieved has failed to be achieved in any other appropriate and practicable manner taken prior to the making of the application, and

(ii) the reason why, in the opinion of the applicant, no other appropriate and practicable manner to achieve that benefit remains to be taken prior to the making of the application.

High Court

Non-therapeutic sterilisation

Withdrawal of artificial life-sustaining treatment

The donation of an organ

EPA jurisdiction

Section 4 and Part 6

Circuit Court

Exclusive jurisdiction in all other respects.

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Jurisdiction of the courts

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Effect of co-decision-making order

Section Provision

s.17(3)(a) [Where a court makes a declaration under s.15(1)(a)] ‘A co-decision-making agreement has no effect unless it is the subject of a co-decision-making order.’

s.17(4) Where the court makes a co-decision-making order, ‘a relevant decision made otherwise than jointly by the RP and the co-decision-maker is void’.

s.17(6) The court may vary or discharge a co-decision-making order of its own motion or on application to it.

s.17(7) The Act provides for reviews of such orders after approximately one year and then every 3 years.

s.17(9) The court may revoke or vary an order if satisfied that a co-decision-maker is behaving/proposes to behave outside their authority or in a manner that is not in ‘the interests’ of the RP.

s.17(3) Once an order is in place, an agreement cannot be varied or revoked except by court order (upon an application)

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Events following the making of the order

EVENT: s17(10)

The court is satisfied that:

(a) the relevant person’s capacity to make a relevant decision has improved to the extent that he or she no longer requires the assistance of the co-decision-maker for that relevant decision,

(b) the relevant person’s capacity to make a relevant decision has deteriorated to the extent that he or she is unable to make that relevant decision even when assisted by the co-decision-maker,

(c) the relationship between the relevant person and the co-decision-maker has broken down,

(d) the relevant person is unable, unwilling or refusing to accept the assistance of the co-decision-maker, or

(e) the co-decision-maker is unable, unwilling or refusing to continue as such co-decision-maker.

CONSEQUENCE: s.17(11)

The court may:

(a) revoke the co-decision-making order concerned, or

(b) vary the terms of the co-decision-making order relating to the appointment of the co-decision-maker under the co-decision-making agreement which appointed the co-decision-maker.

(12) The court, on making an order under this section which has the effect of revoking its approval of the appointment of a co-decision-maker for a relevant person under a co-decision-making agreement, shall, where the court considers it necessary, make further orders under this Part in respect of the relevant person.

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How are co-decisions actually made?

17-(4) Where the court makes a co-decision-making order in respect of a co-decision-making agreement, a relevant decision made otherwise than jointly by the relevant person and the co-decision-maker is void.

18-(13) A relevant decision made in good faith jointly by the appointer and the co-decision-maker for the appointer shall be considered to have been made by the appointer.

21-(2) 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.

ACQUIESCENCE

19.—A co-decision-maker for the appointer shall acquiesce in a relevant decision made by the appointer and shall not refuse to sign a document referred to in section 21(2) 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.

Co- ? Joint? Joint decision? Co-executors Co-attorney Smith & Co. Co-worker Cohabit Co-operate

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‘Co-decision-maker’

Victorian Law Reform Commission In a consultation paper, the Commission proposed the

introduction of a new co-decision making appointment to help people in need of assistance with decision making.

Some groups supported the entire continuum of decision-making appointments proposed by the Commission, including co-decision makers. However, responses were mixed.

Concerns

The Mental Health Legal Centre indicated that while they initially supported the proposal for co-decision makers, negative consumer feedback and concerns about the potential for abuse had changed their view.

Victoria Legal Aid expressed concern that a co-decision-making arrangement has the potential to be an ‘uneven partnership’, where the co-decision maker may heavily influence the person with a disability to agree with a decision that the co-decision maker thinks is appropriate in the circumstances.

Victorian Law Reform Commission – Guardianship: Final Report, 2012Anselm Eldergill

Victorian Law Reform Commission

The Federation of Community Legal Centres shared Victoria Legal Aid’s concerns, and argued that ‘the co-decision making model … seems likely to increase complexity without much associated benefit’.

Commission itself in favour

The Commission itself supported the introduction of co-decision-making: ‘Co-decision making is qualitatively different to substitute decision making because the person with impaired decision-making ability continues to have legal responsibility for decisions about their own affairs, even though those decisions require the agreement of another person.

Difficulties to consider

However, there were a number of ‘challenges’:

‘complexity, and potential confusion … Defining the meaning of a ‘joint’ decision, identifying the potential users … and describing the responsibilities of third parties who transact with co-decision makers are all important challenges.’

Victorian Law Reform Commission – Guardianship: Final Report, 2012Anselm Eldergill

Victorian Law Reform Commission

‘… the co-decision maker may be in a position to exert significant influence over a person with impaired decision-making ability. This creates the potential for abuse. In circumstances where a person’s decision-making ability fluctuates considerably, it may also be difficult for co-decision makers to determine whether a decision has been jointly made, or whether it is really a substitute decision.

Liability to third parties

‘Third parties will need to decide how they wish to deal with co-decision makers.’

To ensure the effectiveness of co-decision-making arrangements, the law should state that decisions made and actions taken by the co-decision maker and the represented person within the scope of their joint arrangement should be treated as if they were acts of the represented person with capacity.’

Victorian Law Reform Commission – Guardianship: Final Report, 2012Anselm Eldergill

Victorian Law Reform Commission

Capacity needed to make a co-decision making agreement

‘Before making a co-decision-making order, [the tribunal] must be satisfied that it is unlikely that a person has the capacity to make the relevant decisions alone, and is in need of a co-decision maker. It is therefore necessary that the law specify that the person is deemed to lack capacity to make the relevant decisions without the support of a co-decision maker.’

Liability of the appointee

‘… because the role is an unpaid, altruistic one, the Commission believes that the law should provide legal immunity for co-decision makers who have acted in good faith, within the terms of their appointment, and in accordance with their legal responsibilities. Any claim or action arising out of a co-decision-making arrangement should ordinarily be a claim against the estate of the person supported under that arrangement.’

Victorian Law Reform Commission – Guardianship: Final Report, 2012Anselm Eldergill