The Assisted Decision-Making (Capacity) Act 2015 was signed into law in 2015 and finally commenced on the 26th of April 2023. Below you will find some information on the Act itself and other relevant information for adults with PWS, their families and carers.
If you have any issues, concerns or questions about the implications of the Act, please contact Gary Brennan at:
Mob: 087 385 1387
Section 1 – The Assisted Decision-Making (Capacity) Act 2015.
The legislation sets out a system of supports for adults who have difficulties with decision-making capacity. People who may need supports to make decisions include people with PWS other people with an intellectual disability, mental illness or acquired brain injury or some people with age-related conditions affecting capacity. Any of us may need to use the provisions of the Act at one time or another.
What the ADMA says
The act says that everyone is presumed to be able to decide for themselves unless the opposite is shown. The new law sets out ways to support people who lack capacity to make decisions. The new assisted decision-making act moves away from a ‘best interests’ approach for people who need support with decision making. It is a move to a rights-based approach to decision making with respect for the will and preference of the person.
For more information on the Act, click on the links below:
- Short guide to the Act – Assisted Decision Making Capacity Act 2015 A Short Guide – Explainer video – YouTube
- Full Presentation on the Act- Presentation on the Assisted Decision-Making (Capacity) Act 2015 – YouTube
- Assisted Decision Making – Frequently Asked Questions – HSE.ie
Section 2 – ADMA Guiding Principles
Section 8 of the Assisted Decision-Making (Capacity) Act 2015 contains the Guiding Principles of the legislation. These principles guide interactions, decisions, and interventions with a person whose capacity is in question or will shortly be in question, and with a person who lacks functional capacity to make a specific decision. The Guiding Principles will apply to all Interveners under the legislation. As the principles are based on human rights principles, they create a best practice guidance for all interactions with a person whose capacity is in question, may shortly be in question and also with a person who may be in vulnerable circumstances.
Guiding Principle 1 – Presume Capacity
A person is presumed to have capacity unless it is shown otherwise using a functional approach to capacity. A person does not have to prove they have capacity – there is no test.
Guiding Principle 2 – Support Decision Making
A person should be given all possible support to make their own decision. This means that all relevant information about the decision is given to the person in way that is appropriate to their own circumstances, considering the persons means of communication, the time and place that best suits the person, and using appropriate communication aids to assist the person.
Guiding Principle 3 – Right to make an unwise choice.
A person is not considered unable to make a decision merely because they have made an unwise decision. If a person makes an unwise decision, it does not mean a person lacks capacity to make the decision. A person’s capacity should be construed functionally – the person’s ability to understand, at the time a decision is to be made, the nature and consequences of the decision to be made in the context of the available choices at that time.
Guiding Principle 4 – Intervene only where necessary.
No action/intervention should be taken unless it is necessary for the person based on their individual circumstances.
Guiding Principle 5 – An intervention is least restrictive and respects the persons rights.
Any action/intervention taken for a person should be the least restrictive of their rights and freedom. Any action should respect the person’s dignity, bodily integrity, privacy, autonomy, and right to control over their financial affairs and property. An action should be proportionate to the significance and urgency of the matter in question, and be time limited Guiding Principle 6 –
Guiding Principle 6 – An intervention gives effect to a person’s will and preference.
A person should be permitted, encouraged and facilitated to participate in any action/intervention taken for them. Any action/intervention taken for a person should follow the person’s past and present will and preferences, and should take account of their beliefs and values, particularly those expressed in writing. The person making the intervention (the Intervener) should take account of any factors that the person would take into account if they were making the decision themselves. The Intervener should consider the views of others who the person has named, and the views of any decision-supporter appointed under the legislation. The Intervener should act at all times in good faith and for the benefit of the person. When acting or making a decision for a person, the Intervener should consider all reasonable relevant circumstances.
Guiding Principle 7 – Consider the views of others.
The views of people engaged in a caring role for the person, people with an interest in the welfare of the person or healthcare professionals may be considered by the Intervener when taking an action/intervention on behalf of a person.
Guiding Principle 8- Consider likelihood of recovery and urgency of the matter.
If an intervention is proposed for a person who is considered to lack the capacity to make a decision about the matter themselves, consider if the person will recover capacity to make their own decision and consider if the intervention is urgent or if it can wait for the person to be able to make their own decision.
Guiding Principle 9 – Obtaining, Using and Storing Relevant information.
An Intervener should obtain relevant information only, use the information only for the purpose of making the action/intervention, keep the information secure and dispose of the information safely when no longer required.
Section 3 – The Decision Support Service
The Decision Support Service is set up within the Mental Health Commission and will oversee the implementation of the new Assisted Decision-making legislation.
The Decision Support Service will:
- Raise awareness about UN Convention on rights of People with a Disability & the Assisted Decision-making Act
- Supervise those supporting decision-making, the assistants, co decision-makers, representatives, and attorneys
- Appoint panels of representatives, court friends, special and general visitors for those who do not have a circle of support from whom they can chose supports known to them.
- Keep a register of support agreements, read reports.
- Deal with complaints and start investigations.
- Give advice to the court making a decision.
The Decision Support Service have published 13 codes of practice for decision supporters, interveners and relevant professionals, providing guidance for their functions and responsibilities under the Assisted Decision-Making (Capacity) Act 2015. Please click here for access to the codes.
The Decision Support Service have developed a short video for families explaining the Assisted Decision-Making (Capacity) Act 2015
Section 4 – HSE ADM Disability Reference Group
Gary Brennan is currently a member of the HSE ADM Disability Reference Group aiming develop disability specific guidelines for carers and families including those that support adults with PWS.
If you have any issues, concerns or questions about the implications of the Act, please contact Gary at:
Mob: 087 385 1387
Family Carers Ireland have produced the document below on the ADMA and family carers.