Assisted Decision Making

Sarah LennonInclusion Ireland

Overview

• The current situation in Ireland• Context for Change• Typical Case Studies• The Future

Currently in Ireland

• Status Approach to Capacity– Decision that someone ‘lacks capacity’– Simply possessing or not possessing particular

characteristics– Typically ‘all or nothing’– No regard to actual capabilities to make particular

decisions

Ward of Court

• Irish system – Ward of Court• 1871 Lunacy Regulation Act• Person who is made a Ward of Court is

deemed ‘lunatic’ ‘idiot’ ‘unsound mind’ • Typically as a result of finances• Protection• Broad restrictions

Ward of Court

• Medical Model• When considering whether or not a person

should be taken into Wardship, the Court must be satisfied that the person is, on the basis of the medical evidence available, mentally incapacitated and incapable of managing his or her affairs – Court Service Guide

Ward of Court

• Financial affairs – including bank accounts, taxation, bills, property

• Consent to medical treatment (approval)• Wills (only with permission)• Marriage (not permitted)• Travel abroad (only with permission)• Legal proceedings (with permission)• Wards can be sued or prosecutred

Change

• Change began in 2003 with Law Reform Commission consultation on ‘Law & The Elderly’

• Relevance to other persons• 2005, Consultation Paper on ‘Vulnerable

Adults & the Law’ • 2006, Report on ‘Vulnerable Adults & the Law’

Change

• 2006-2007, UN Convention on the Rights of Persons with Disabilities (UNCRPD)

• Mental Capacity and Guardianship Bill 2007 (Seanad)

• Scheme of Mental Capacity Bill 2008• Assisted Decision-Making (Capacity) Bill 2013

Functional Approach

• Issue Specific• Time Specific• Based on ability to understand the nature and

consequences of a decision to be made in the context of the available choices at the time the decision is made

Defining Capacity

• Australian State of Victoria, capacity is defined in terms of lack of capacity – Substitute Approach

• In the Canadian province of Saskatchewan, capacity is defined as the ability to understand information relevant to making a decision and to appreciate the reasonably foreseeable consequences of making or not making a decision.

UNCRPD

• Article 12 • Equal Recognition• Legal Capacity on an equal basis with others in

all aspects of life

Legal Vs Mental Capacity

• Mental capacity is closely aligned with intelligence

• Legal capacity is the ability to make decisions and have such decisions respected in all areas of life

• Presumption that everyone has legal capacity

The Assisted Decision Making Bill

• For people over 18• It is still a Bill –may be changes• Doesn’t apply to voting, marriage,

membership of a jury, mental health treatment and consent to sexual relationships

• Many parts of the law are still unclear and will need a Code of Practice to explain them

Definition of Capacity

Can You?• Understand the relevant information (given in a

way that is accessible to you)• Remember the information• Use the information towards making a decision• Communicate your decision (not only verbally)

• Applies to EVERYONE – not just people with a disability or diagnosis

Principles

• Presumption of capacity (not the other way around)

• Information used must be accessible to that person

• ‘unwise’ decision does not equal lack of capacity• Any Intervention must be necessary and least

restrictive of your freedom, rights and dignity• Individual must participate in intervention• Will and preferences (as far as practicable)• Talk to others who know the person well

Exclusions

• Marriage / civil partnership / separation/dissolution and divorce

• Adoption or guardianship of a child• sexual relations• voting at an election or at a referendum• serving as a member of a jury.

Office of Public Guardian

• Raise awareness about UN Convention & Act

• Supervise assistants, co decision-makers, representatives and attorneys

• Appoint panels of representatives, court friends, special and general visitors

• Keep a register of agreements, read reports • Deal with complaints and start investigations• Give advice to the court making a decision

How will Decisions be Made?

1. by the person autonomously

2. By the person with assistance

3. Informally by another person

4. By the person with a co-decision maker

5. By another person (representative or attorney)

6. By the High Court for certain decisions

Outside of the Court System

Through the Court System

Assistance

• Applies to persons aged over 18• The law says you must think your capacity

is ‘in question or shortly may be in question’ for the agreement to be used

• Assistance for personal welfare or property and affairs, or both

Assistance Agreements

• There will be a form to fill in called the ‘agreement’

• The ‘appointer’ is the person who chooses the ‘assistant’

• There can be more than one assistant but not more than one per decision to be made

• If someone else challenges your decision you can show them your agreement

Function of the Assistant• Advises about the decision

• Gets the ‘will & preferences’ of the appointer

• Helps to communicate the decision and makes sure the person’s wishes are followed

• Can access relevant information needed for the decision

• Does NOT make the decision

Informal Decision-Making

• Allows someone to make an ‘everyday’ decision for someone else who they believe lacks capacity

• Must comply with general principles• Only for personal welfare decisions• Paid for expenses from your money

Informal Decision-Making

• Still liable for criminal or civil negligence

• Must not make a decision that goes against

assistant, co decision, or representative

• Can’t make a decision that only the High Court

can make

Informal Decision-Making

• Still liable for criminal or civil negligence

• Must not make a decision that goes against

assistant, co decision, or representative

• Can’t make a decision that only the High Court

can make

Co-Decision Making

• Over 18 and capacity in question or more be shortly

• May be appointed by the person themselves or by court

• Person cannot have a co-decision maker appointed against their will

• The individual and co-decision maker make the decision together

Role of the Co-Decision Maker

• Make any decision (specified) together with the individual

• Advise the individual• Ascertain the ‘will and preferences’ of the

person• Assist the person to communicate their

decision• Access relevant personal information

Role of the Co-Decision Maker

• Must prepare an annual report for the public guardian

• Can receive expenses

Co-Decision Making

• A co-decision maker must comply with the decision made by the individual appointer unless– It is not ‘reasonable’– It is harmful to themselves or others

Who can be a co-decision maker?

• a relative or friend of the who has had such personal contact, over such period of time that a relationship of trust exists between them

Who cannot be a Co-decision Maker?

• Owners, employees or agents of a nursing home, a mental health facility, or a residential facility for persons with disabilities, in which the relevant person resides

Powers of Attorney

• You make a ‘power of attorney’ once you are over 18. It is an agreement that someone you choose will make decision(s) for you once you consider that your capacity is or shortly may be in question.

• This replaces the Enduring Powers of Attorney Act 1996. If you appointed an attorney under the old law, it still applies. Otherwise, this new law applies.

Decision-Making Representatives

• Substitute Decision making – close to a guardianship model

• Appointed by Court, on foot of an order or otherwise

• Court decides that a co-decision maker is not appropriate or not available

Who can be a Decision – Making Representative?

• Can be more than one person per decision• Suitable and understanding of the

responsibility • Over 18 years old • The Public Guardian will maintain a panel of

suitable persons willing and able to act as decision-making representatives

Who cannot be a Decision Making Representative?

• Owners, employees or agents of a nursing home, a mental health facility, or a residential facility for persons with disabilities, in which the relevant person resides

Wards of Court

• Everyone who was a ward before the Act will be reviewed within 3 years but can apply to court for review as soon as the Act is passed

• Everyone who was a ward will be discharged eventually, and a different order will be made (e.g. co decision-making or representative) but the court will decide when this will happen and will base this on the person’s capacity

Case Studies

• Mike has an intellectual disability, his mother dies without a will and he and his sister Anne inherit equally. Anne wishes to sell the property but there is concern that Mike lacks Capacity to consent.

• Today – Mike could be made a Ward of Court • Post Act – Mike could have a co-decision

maker or personal representative

Case Studies

• Jack has an acquired brain injury following injury at birth. He receives a large sum of money in damages for his future care.

• Today – Court holds money pending application for wardship

• Post Act – Court could appoint a co-decision maker or personal representative and review

Case Studies

• Barry has an intellectual disability. His doctor has prescribed him medicine for high blood pressure. He is confused as to when he is to take the medication and wants some support.

• Today – Only Barry can give consent. Often a service provider or family member will ‘manage’ the medication

• Post Act – Barry can have an ‘assistant’ of his choosing to support him

Thank You

• Q&A