The Assisted Decision-Making (Capacity) Act 2015 was finally signed into law on 30 December 2015.
This landmark piece of legislation transforms the way that decisions will be made in relation to an individual’s personal welfare and financial affairs in circumstances where they lose mental capacity to make their own decisions or may in future lose this capacity. The number of people for whom the Act is relevant is therefore huge, including individuals with intellectual disability, acquired brain injury (such as through a car accident), significant mental disorder, dementia and conditions primarily related to old age, as well as those who have significant communication difficulties. Insofar as we all may one day experience a deterioration of our mental faculties and a greater dependence on others as we age, the Act has the potential to affect every person in the State at some point in their life.
The Act repeals the Lunacy Regulation (Ireland) Act 1871, abolishing the archaic wardship system. It abolishes the “status” approach to capacity that wardship represented and replaces it with a “functional” approach to capacity. This new approach to assessing capacity demands that a person’s decision-making capacity be judged by asking whether, at this particular time, a person has capacity to make this particular decision. Where a person’s capacity is in question or may shortly be in question, individuals can formally appoint a decision-making assistant or co-decision-maker to help them to understand the issues and make and communicate their decision, depending on their needs. All such supported decision-making will be underpinned by the guiding principle that the will and preferences of the individual are to be respected, and will be supervised by a new Director of the Decision Support Service.
Advance Healthcare Directives
In line with this Act’s focus on respecting the will and preferences of the individual, the Act provides for the making of advance healthcare directives (AHD). These will allow an individual to make an advance expression in writing of their preferences concerning medical treatment which can be relied upon in the event that healthcare decisions must be made at a time when that individual lacks capacity, and/or to appoint a healthcare representative to ensure that the terms of the AHD are complied with. In this way, an AHD will help your medical team or close family understand your wishes regarding treatment and designates a trusted person to communicate on your behalf or to make a decision in accordance with your will and preferences.
A person may specify in their AHD what treatments they would like to be provided and also what treatments they would like to refuse. “Treatment” in this regard includes all therapeutic, preventative, diagnostic and palliative interventions, or other interventions whose purpose relates to the physical or mental health of the person, and includes life-sustaining treatment (s. 82) (one notable exception is where, at the time when it is proposed to treat the directive-maker, his or her treatment is regulated by Part 4 of the Mental Health Act 2001 – the AHD will not apply to such treatment (s. 85(7)(a)).
While requests for treatment will not be legally binding and will only be taken into account in the decision-making process (s. 84(3)(a)), valid and applicable treatment refusals in an AHD, including the refusal of life-sustaining treatment, will be as effective as they would be if the person making the refusal currently had capacity (s. 86(1)). The power to refuse a treatment in advance is therefore the major advantage of creating an AHD.
The Act states that treatment refusals shall be complied with provided that the treatment to be refused is clearly identified in the directive instrument (s. 84(2)(b)), and provided that the circumstances in which the refusal was intended to apply are also clearly identified (s. 84(2)(c)). If the treatment in question or the circumstances are not materially the same as those specified in the directive, the AHD will be deemed not applicable and will not be followed (s. 85(2)(b), s. 85(2)(c)). Additionally in the case of refusals of life-sustaining treatment, the directive will only be binding if it contains an explicit statement to the effect that the refusal in question is intended to apply even in circumstances where the individual’s life is at risk (s. 85(3)).
Given the potential significance of any advance refusal of treatment, these restrictions as to when an AHD will be regarded as applicable, and therefore binding on your medical team, are likely to be strictly adhered to. It is therefore imperative that AHDs be drafted extremely carefully in order they will not end up being held invalid when it matters most, and when the maker of the directive has already lost capacity and may not be in a position to do anything about it. The expertise and care required in creating an AHD can thus be compared to that needed when drafting a will, for example. It is also apparent that the individual wishing to make an advance refusal will need to have some idea in advance of a) the sorts of health issues they are likely to face going forward, and b) the sorts of treatments they are likely to be offered for those issues. That is, if the AHD is to be drafted with sufficient precision such that the treatment and circumstances specified in the directive will be materially the same as the real-life circumstances and treatment actually being proposed, it will be necessary to look ahead to potential health problems and attendant treatment decisions and outline these clearly in the AHD – a broad statement that any and all treatment be refused will likely not suffice to bind your medical team. In practice, this will mean looking at your current health picture, and in particularly any health problems you have which may worsen with time, and envisaging likely future scenarios which can be addressed in the AHD.
Making an Advance Healthcare Directive
It is anticipated that the new Act will be commenced towards the end of this year once the necessary structures are in place. Once the provisions of the Act relating to AHDs are commenced, it will be possible to create an AHD and you should contact our offices in this regard. We will keep you updated with any development as to commencement on our blog.