23rd May 2023
As we approach summer 2023, our contributor Seamus Gunn today highlighted the implementation of the Assisted Decision Making (Capacity) Act 2015 which came into effect on the 26th April last. He said that this could be a game changer for thousands of families throughout the country, mentioning that there are upwards of 2,150 individuals in Wardship at present and that there is a fund of approx. € 1.9 Billion to be administered under the new regime, whenever the review has taken place of all the current Wards. The Act has been a long time in gestation, requiring an amendment in 2022 to get to the stage today where the Decision Support Service (DSS) has been set up under the Mental Health Commission which dates back to the 2001 Legislation. For the first time, capacity has been recognised as a fundamental Human Right and there is now a presumption that everybody has capacity until proven otherwise. He referenced the different tiers of the new roles that have been introduced by the DSS.
He said at the lower level a decision-making assistant could be appointed for one who was in the early stages of a capacity issue and that while they would ultimately make the decision, they would have the help of the designated person and the DSS would be notified.
The next tier referred to was the co-decision maker arrangement, where the individual would appoint a person to make decisions in co with them. Again, as with all the roles, the DSS oversees. The agreement would be registered with them and no decision could be made without the involvement of the Relevant Person. He said that if one got to a stage of a more advanced capacity issue, while the old system of the Ward of Court has now been abolished, you would now have a role for a decision-making representative who would ultimately be appointed through the Circuit Court, rather than the High Court. The Enduring Power of Attorney would also come under his heading, which once again would be registered with the DSS pending it being triggered by the relevant person losing capacity.
Finally, he said that another major development was the use of health care directives and health care representatives where one wanted to make decisions in advance when they had capacity as to what types of treatment that they were to receive in the event that they lost capacity.
Our contributor noted that the old legislation referred back to the Lunacy Regulations Act of 1871 and that now finally we have got to a situation where for the first-time capacity was being acknowledged as a fundamental human right and protected under legislation now introduced. No doubt this topic/issue which has an impact on so many lives, shall be further debated in the future.
While the ascending or descending star of Donald Trump (depending on which side of the fence one is on) was also discussed, the following Q&A touched on a number of issues.