The Minister for Justice, Frances Fitzgerald, and the Minister for Health, Simon Harris, have signed Statutory Instruments which commences some parts of the Assisted Decision-Making (Capacity) Act 2015.
The commencement orders – which were signed on Monday – mean that some parts of the Capacity Act have been brought into effect.
These orders mean that the Decision Support Service (DSS) can be established and the working group to establish the codes of practice for Advance Healthcare Directives can also be convened.
However, the part of the Capacity Act relating to the repeal of the Lunacy Regulation (Ireland) Act 1871 and carrying out the review of Wards of Court has yet to be commenced; the timeframe for the commencement of these aspects of the Act remains unclear.
The commencement of some parts of the Capacity Act is a positive step forward in terms of Ireland’s ambitions of ratifying the UN Convention on the Rights of Persons with Disabilities (UNCRPD).
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.
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.
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.
Code of Practice
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.
While it will be necessary to allow the DSS some time to commence its work, it is essential that all parts of the Act are commenced without undue delay, that sufficient resources are put in place, and that the three-year review of Wards of Court begins as quickly as possible.