Assisted Decision-Making Capacity Act And Proposed Irish Mental Health Law Reform

Author:Mr John Gleeson and Keelin Cowhey
Profession:Mason Hayes & Curran

The long-awaited Assisted Decision-Making Capacity Act 2015 (ADMCA) makes far-reaching changes to the law relating to capacity in Ireland. The ADMCA is underpinned by the principle that people with impaired capacity should be supported as far as possible in their decision making. A limited number of sections have been implemented to date. These mostly relate to definitions and the appointment of the Director of the Decision Support Service (DSS). The remit of the DSS will be to inform the public about the ADMCA, and about the supports available through the DSS to those who require assistance with their decision-making.

The DSS will establish and maintain panels of suitable people willing to act as decision-making representatives, court friends and special and general visitors. The appointment of the Director of the DSS was recently made and it is understood that the necessary steps towards the establishment of the DSS are at an advanced stage. The important work of drafting some of the regulations under the ADMCA is also understood to be underway together with the drafting of Codes of Practice required under the ADMCA. A national implementation programme has been developed to support staff and prepare services for full integration of the ADMCA.

The key changes introduced by the ADMCA include:

A statutory definition of capacity which incorporates the presumption of capacity. It also introduces a functional test together with a principles' based framework for the assessment of capacity. This is an important and significant development. Repeal of the Lunacy Regulation (Ireland) Act 1871 and abolition of the wardship jurisdiction for all new applicants. Introduction of decision-making supports where a person can enter a decision-making assistance agreement or a more formal and complex co-decision making agreement. Changes to the Enduring Powers of Attorney regime. A legal framework facilitating the making of legally binding Advance Healthcare Directives. Proposed reform of Mental Health Law

The Mental Health (Amendment) Bill, which was passed by the Dáil in July 2017 and is now at Committee stage in the Seanad, proposes certain reforms. These reforms implement some of the recommendations contained in the Expert Group Report 2015, which reviewed the Mental Health Act 2001 (2001 Act).

The key provisions of the Bill include:

The introduction of a definition of a 'voluntary patient' to include only those who have capacity to make their own...

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