Decision-making and consent: Best practice in the absence of a legal framework

Decision-making – current guidance pending full commencement of the Assisted Decision-making (capacity) Act 2015

 

1. Assisted Decision-making (Capacity)Act 2015

Factsheet

2. HSE National Consent policy 2017

Factsheet

3. HIQA - Supporting people’s autonomy: a guidance document

Factsheet

4. HIQA Guidance for Designated Centres – Residents’ Finances

Factsheet

5. Department of Social Protection – Appointment of Agents

Factsheet

6. Health (Repayment Scheme) Act 2006 and HSE guidelines

Factsheet

7. The Medical Council Guide to Professional Conduct and Ethics

Factsheet

8. Data Protection Act 1988 -2003 and the General Data Protection Regulation (GDPR) 2016.

Factsheet

9. Discussion Document : Sage Support and Advocacy Service Contracts of Care for Nursing Home Residents, Issues for Policy and Practice.

Factsheet

For information purposes only. Other guidance specific to your situation may be available elsewhere.

 

Best Practice principles from current guides and policy

Presumption of Capacity: everyone is presumed to be able to make a decision for themselves unless the opposite is shown. An assessment that a patient lacks the capacity to make a particular decision does not imply that they are unable to make other decisions or will be unable to make this or other decisions in the future.

Duty to maximise capacity: efforts must be made to support the person in making decisions for themselves where this is possible, giving the time and support they need to maximise their ability to make decisions for themselves.

Accessible Information: A person must be given information in a manner they can understand to assist them to make decisions.

Will and preference: where capacity is absent you should determine what is in the person’s best interest, which is decided by reference to their values and preferences, if known.

Respect for dignity and personal integrity: Adults who are considered not to have the capacity to make a decision are entitled to the same respect for their dignity and personal integrity as anyone with full capacity. You should seek and listen to their views, and involve them in decisions about their healthcare to the extent that they are willing and able to be involved. Even when deemed to lack the capacity to make his own decisions, the person’s autonomy can be promoted by ensuring that care, support and treatment reflects any previously expressed will and preferences.

Consult to inform: consultation with family and friends can assist in identifying the preferences of the person receiving care, support or treatment. While family members may be consulted about an adults care and treatment (with permission from the adult), they do not have a legal right to consent to or refuse treatment or make decisions on the person’s behalf unless formally appointed in law to do so.

Rights and Responsibilities: People are responsible for the decisions they make when those decisions are informed, voluntary and made with sufficient capacity. Processing and sharing personal information: personal data may only be processed with the person’s consent and in certain other limited circumstances. These limited circumstances include where processing is necessary to protect the vital interests of the person,(guidance suggests vital interests only refers to life or death situations), necessary for the performance of a contract to which the person is party or necessary for compliance with a legal obligation to which the data controller is subject.