The Assisted Decision-Making (Capacity) Act 2015 and the Decision Support Service Inclusion Ireland AGM 9/6/2018 Áine Flynn Director of the Decision Support Service 1
Assisted Decision-Making Capacity Act 2015 = The Act Decision-making capacity means being able to make your own decisions This Act is about how we support people to make decisions by themselves..and how we help and protect them if they have problems with decision-making This Act is only for people who are over 18 The Act has not started working yet 2
The Decision Support Service New Service set up under the Act In the Mental Health Commission But does a different job from the Mental Health Commission Not open for business just yet 3
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Why do we need a new law? The law that we are using now is a very old law from 1871, almost 150 years ago. Under this old law we have the Wards of Court system. Right now, if the court decides that a person lacks mental capacity and cannot manage their money or their personal care, then the court can make the person a Ward of Court. 6
The 1871 System If you are a Ward of Court, the President of the High Court makes decisions for you. Big decisions and Small decisions After the new Act there will be no new Wards of Court All Wards will come out of wardship within 3 years at the latest 7
President Higgins signs The Assisted Decision- Making Capacity Act 30 th Dec. 2015 8
The New System A new way of assessing if someone has capacity Not a medical test New functional test You lack capacity is not a full sentence Must be issue-specific and time-specific Do you have capacity to decide something at the time when you need to decide it? 9
Functional test Understand information Retain information for as long as you need to Weigh up this information Communicate your decision I.D./acquired brain injury/dementia: NONE of these matters unless they actually affect your decision-making 10
IT S ABOUT ABILITY NOT DISABILITY 11
Guiding Principles The most important things to remember when using the new law. 1. Start off by thinking that everyone can make their own decisions. We call this the Presumption of Capacity. 2. Give the person all the support they need to help them make their own decisions. 3. Wanting to do something that seems unwise does not mean that you don t have the capacity to decide to do it. 12
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More Guiding Principles Intervene as little as possible Respect for dignity, privacy, bodily integrity, autonomy Let people make up their own minds as much as possible Include the person in the decision-making Respect for Will and Preferences instead of Best Interests Act in good faith and for the person s benefit 14
What sorts of decisions are covered by the new law? Personal Welfare, like deciding where you live and with whom Health, like if you should have an operation Property, like if you need to sell or buy a house Money, like how you should spend or save your money 15
New Decision Supports 1. Decision-Making Assistant (DMA) You can choose someone whom you trust to help you understand information and the choices you have. The person you choose will be your decision-making assistant. 16
You will have to make a decision-making assistance agreement to agree the kind of things that you want them to help you with. They will help you get information and make decisions but will not make the decisions for you. An assistant can help you to let others know about your decision or help you have your decision carried out. The Director of the Decision Support Service will keep an eye on what your decision-making assistant does. 17
2. Co-Decision-Maker (CDM) If you need someone to share making decisions with, you can choose someone to make decisions together with you. The person you choose will be your co-decision-maker and should be a close friend or family member that you trust. You will have to make a co-decision-making agreement that agrees the kind of decisions that you want to make together with your co-decisionmaker. 18
Decisions are shared by you and your co-decision-maker (CDM) Your CDM helps you obtain and understand information. They should not stand in your way unless there is a risk of serious harm There are lots of rules The Director will keep an eye on what your co-decisionmaker does 19
3. Decision-Making Representative (DMR) If the judge in the Court decides that you cannot make decisions even with the help of someone else, then the court can choose someone called a decisionmaking representative to make decisions for you. The Court will listen to you and to others who care about you. You can have someone to help called a Court Friend The Court must consider whom you want as your decision-making representative. 20
Your DMR must consider your past will and preferences every time he or she makes a decision for you. They must try to make the decision that you would want. The Court will decide what your DMR is allowed to do and what they are not allowed to do. The Court must review your case regularly There are lots of rules and the Director of the will keep an eye on what your DMR does. 21
Enduring Power of Attorney An attorney is a person you choose to make decisions for you in the future if you cannot make them yourself. While you have capacity to do so, you can make an Enduring Power of Attorney (EPA) You get a legal document written up with the name of the person you would like to make your decisions when you can no longer make those decisions yourself. You decide what decisions your attorney will make about money or personal things like where you should live. If you want, the new Act means you can let your attorney make decisions about medical treatment as well as the other decisions. 22
EPAs There are lots of rules about EPAs The new law also allows the Director of the Decision Support Service to keep an eye on what your attorney does. 23
Advance Healthcare Directive (AHD) An Advance Healthcare Directive is a legal document. You use it to let people know what medical treatment you want or do not want. You can pick a person called a designated healthcare representative (DHR) to make decisions in the future about medical treatments when you can no longer make those decisions yourself. 24
You may make an AHD while you still have capacity It must be very clear about what you want and don t want It is only used when you lack capacity later It can include refusing life-sustaining treatment. You cannot refuse basic care in your AHD The new law allows the Director to keep an eye on what your DHR does. 25
Functions of the Director of DSS Raise public awareness and confidence about supported decision-making Provide information to people about how to use decision supports Provide information about how to act as a decision supporter Supervise decision supporters Make reports and recommendations about how things can be better Investigate complaints 26
Other protections: Offences under the Act It is an offence to make a person enter into a supported decision-making arrangement against their will It is an offence to put false details in any of the documents It is an offence for a decision supporter to ill-treat or neglect the person they are supposed to be looking after Maximum 50,000 fine or 5 years imprisonment! 27
Getting ready: Codes of Practice The Director of the Decision Support Service will make codes of practice that will tell doctors, nurses, care workers, social workers, lawyers and other people, how to make sure that they are following and doing what the new law says to do. People who help people make decisions or make decisions for other people must know what s in a code and follow it. The Director of the Decision Support Service will encourage families, carers and others to read the codes of practice and to use them as advice about how to treat people who have difficulty making decisions. The codes of practice will be ready before the Decision Support Service is set up. 28
Conclusion We need to make sure that we are doing what it says in the United Nations Convention on the Rights of Persons with Disabilities: full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination the right to recognition everywhere as persons before the law persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life Loss of decision-making capacity is not an off-switch for human rights! 29
Thank you! 30