Who Decides now and to What Extent? A Critical Reading of the Assisted Decision-Making (Capacity) Act 2015

Date01 January 2017
AuthorLouise Ordinaire
Who Decides now and to What Extent? A
Critical Reading of the Assisted Decision-Making
(Capacity) Act 2015
On 30 December 2015, the President signed into law the Assisted Decision-
Making (Capacity) Act 2015 (hereinaer “the Act” or “the 2015 Act”). It is an
important piece of legislation which will make substantial changes to the law in
relation to persons over the age of eighteen, who are experiencing diculties with
decision-making either currently or in the future, particularly those who have an
intellectual disability, a brain injury or a psychological illness. It will provide for the
appointment by such persons of other persons to assist them and the appointment
by the Circuit Court of decision-making representatives for those persons, to make
decisions on their behalf.1 Another signicant change is the establishment of the
Decision Support Service. is is a supervisory body which will have a number
of roles including the power to investigate complaints in relation to any action by
a decision-maker in relation to his or her functions. e body will also promote
public awareness of the new Act and provide information to any person whose
capacity is in question or may shortly be in question, in relation to their options for
exercising their capacity.2
It is important to note that there have been a number of amendments to the
Assisted Decision-Making (Capacity) Bill 2013 since its rst publication. Certain
sections of the 2015 Act have been commenced by way of statutory instrument on
17 October 2016.3 Most of those sections relate to the operation of the Decision
Support Service. Tánaiste and Minister for Justice and Equality, Francis Fitzgerald,
has revealed that a “steering group” on the implementation of the Decision Support
Service has been put in place to oversee the establishment and commissioning
of the Service within the Mental Health Commission, including overseeing the
recruitment of the Director of the Decision Support Service and matters relating
1 Assisted Decision-Making Capacity Act 2015 (2015 No. 64), see long title of the Act.
2 ibid, s.94
3 Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) Order
2016 (S.I. No. 515 of 2016), commenced s.1, s.2, s.5 and s.6, s.94, s.95, s.97, s.98 and s.103 of
the Act; Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions)
(No.2) Order 2016 (S.I. No. 517 of 2016) commenced s.82 (insofar as it relates to the denition of
“Minister”, s.91(1) insofar as it relates to denition of “code of practice” and “working group”, and
s.91(2) of the Act.
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to the resourcing of the Service.4 However, there are a number of steps to be taken
before the full commencement of the Act. e Minister recently stated that,
“careful planning and groundwork, and not just funding, has to be put in place to
ensure that the commencement of the Act is correctly, appropriately and eectively
handled”.5 Codes of practice are due to be published in the near future.6 ese
processes will obviously take time therefore it is impossible to determine precisely
when the new Act will be in full operation.
roughout this article, the author will assess the Act’s level of conformity with the
United Nations Convention on the Rights of Persons with Disabilities (“CRPD”).
e Act’s denition of “capacity” and the concept of “best interests” of the person
will be examined. e author will also consider the growing paradigm of supported
decision-making and assess the decision-making options as contained in the new Act.
Finally, the controversial nature of substituted decision-making will be reviewed.
Ireland has been operating with a nineteenth century ward of court system in
relation to legal capacity. e prehistoric Lunacy Regulation (Ireland) Act 1871
denes a person with a psychological illness or an intellectual disability as a
“lunatic” or “idiot”.7 e 1871 Act, along with the Marriage of Lunatics Act 1811,
is repealed by the 2015 Act. Undoubtedly, the ward of court system is considerably
out-of-date and does not adequately dene capacity.8 e status test, also known
as an all-or-nothing test, is used to determine capacity under the wards of court
system and that test proposes that a nding of incapacity is applied to every decision
a person may make.9 e 2015 Act states that a functional test should be used to
determine capacity.10 is test is in direct contrast to the inexible status test and
will be discussed in greater detail later. Ireland had committed itself to reforming its
wards of court system before ratication of the CRPD.11 e new Act will abolish
wardship and all existing wards will be discharged from wardship within three years
of the coming into force of the relevant provisions of the Act.12
4 Parliamentary uestions, 28 June 2016, PQ 49: Deputy Caoimhghín Ó Caoláin to the Tánaiste
and Minister for Justice and Equality, available at: http://www.justice.ie/en/JELR/Pages/PQ-28-
06-2016-49 [Accessed 21 March 2017]
5 Parliamentary uestions, 27 September 2016, PQ 90: Deputy Dessie Ellis to the Tánaiste and
Minister for Justice and Equality, available at: http://www.justice.ie/en/JELR/Pages/PQ-27-09-
2016-90 [Accessed 21 March 2017]
6 Andrea McNamara, “e Assisted Decision-Making (Capacity) Act 2015”, (2016) 29(3) Ir. T.R.1,
p. 131
7 Lunacy Regulation (Ireland) Act 1871, s.2
8 Brendan Kelly, “e Assisted Decision-Making (Capacity) Bill 2013: Comment, Commentary,
Controversy”, (2015) 184(1) Irish Journal of Medical Science 31, p. 31
9 Irish Human Rights Commission, “IHRC Observations on the Assisted Decision-Making
(Capacity) Bill 2013”, (IHRC, March 2014), p. 4
10 Supra, note 1, s.3
11 Lucy Series, “e Assisted Decision-Making (Capacity) Bill in Ireland: A Bit of a Mixed Bag”, (e
Small Places, 25 July 2013) https://thesmallplaces.wordpress.com/2013/07/25/the-assisted-decision-
making-capacity-bill-in-ireland-a-bit-of-a-mixed-bag/ [Accessed 21 March 2017]
12 Supra, note 1, s.54(2)
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