Inclusion Ireland welcomes partial commencement of the Assisted Decision-Making (Capacity) Act 2015

Inclusion Ireland welcomes partial commencement of the Assisted Decision-Making (Capacity) Act 2015

Ground-breaking legislation will result in significant improvements in the lives of persons with intellectual disabilities

Positive step forward on road to ratification of the UN Convention on the Rights of Persons with Disabilities (UNCRPD)

Inclusion Ireland has welcomed the Minister for Justice Frances Fitzgerald and the Minister for Health Simon Harris signing Statutory Instruments to commence some parts of the Assisted Decision-Making (Capacity) Act 2015.

The commencement orders mean that some parts of the Capacity Act have been brought into effect; the Decision Support Service (DSS) can be established and the working group to introduce the codes of practice for Advance Healthcare Directives can also be convened.

The parts of the Capacity Act relating to the repeal of the Lunacy Regulation (Ireland) Act 1871 and the review of Wards of Court have yet to be commenced.

However, the commencement of some parts of the Capacity Act is a positive step forward in terms of Ireland’s ambitions to ratify the UN Convention on the Rights of Persons with Disabilities (UNCRPD).

Inclusion Ireland’s Equality & Human Rights Officer Sarah Lennon said:

“The enactment of the Assisted Decision-Making (Capacity) Act 2015 before last Christmas was a very welcome reform for people with disabilities, people with acquired brain injuries and older people. However, enactment is not the end of the story – it must be commenced and resources made available to make it a success.

“These partial commencements are a positive step forward, but the Government still has more work to do – the Director of the Decision Support Service (DSS) must be recruited; all remaining parts of the Act must be commenced; and the three-year review of Wards of Court, for people who are in a legal limbo awaiting discharge from the Lunacy Act 1871, must take place as a matter of urgency.

“We must also remember that until all aspects of the Capacity Act have been commenced, the Lunacy Act 1871 will remain on the Irish Statute Book and there will be a major legislative barrier in the way of Ireland ratifying the UN Convention on the Rights of Persons with Disabilities (UNCRPD) which Ireland signed as far back as 2007.”

Notes for the Editor:

The Assisted Decision-Making (Capacity) Act 2015

The Assisted Decision-Making (Capacity) Act 2015 was signed into law by President Michael D Higgins on December 30th 2015.

This ground-breaking legislation will result in significant improvements in the lives of persons with intellectual disabilities as their ability to make decisions for themselves will be enshrined in law. 

The legislation also demonstrates a seismic cultural shift away from a paternalistic and ‘best interests’ approach towards persons with intellectual disabilities to a right-based approach of choice, control and consent.

The new Act also removes a significant barrier to ratification of the UN Convention on the Rights of Persons with Disabilities (UNCRPD).

A person lacks capacity if they cannot understand information relevant to the decision, retain the information, use the information and communicate a decision (not just verbally).

A person who lacks capacity at a given time may regain that capacity and a person who lacks capacity to make a certain decision may have capacity to make another decision. 

Partial Commencements of the Capacity Act 2015

So far, only Parts 1 and 9 have commenced as well as some of Part 8.

The commencement of Part 1 means that a person’s capacity to make a decision will now, by law, be construed functionally meaning that a person must understand, at the time that a decision is to be made, the nature and consequences of the decision to be made.

Additionally, Part 9 has also commenced and this allows for the establishment of the Decision Support Service (DSS) and the appointment of the Director of the DSS. The Director has a role in public awareness and confidence, supervising assistants, co-decision makers and representatives, providing information and guidance. 

Furthermore, Minister Harris has commenced a section allowing for a multi-disciplinary group to make recommendations of a code of practice for advance healthcare directives.

Parts 2-8 are yet to be commenced and these include the guiding principles as well as the establishment of the ‘Assisted Decision-Making’, ‘Co-Decision-Making’ and ‘Representative Decision-Making’ structures and the provisions for Enduring Power of Attorney and Advance Healthcare Directives.