The Assisted Decision-Making (Capacity) Act 2015: what it is and why it matters

Ireland’s Assisted Decision-Making (Capacity) Act 2015 was signed by President Higgins in December 2015 and scheduled for commencement in 2016.

To explore the content and implications of the 2015 Act.

Review of the 2015 Act and related literature.

The 2015 Act places the “will and preferences” of persons with impaired mental capacity at the heart of decision-making relating to “personal welfare” (including healthcare) and “property and affairs”. Capacity is to be “construed functionally” and interventions must be “for the benefit of the relevant person”. The Act outlines three levels of decision-making assistance: “decision-making assistant”, “co-decision-maker” (joint decision-maker) and “decision-making representative” (substitute decision-maker). There are procedures relating to “enduring power of attorney” and “advance healthcare directives”; in the case of the latter, a “refusal of treatment” can be legally binding, while a “request for a specific treatment” must “be taken into consideration”.

The 2015 Act is considerably more workable than the 2013 Bill that preceded it. Key challenges include the subtle decision-making required by patients, healthcare staff, Circuit Court judges and the director of the Decision Support Service; implementation of “advance healthcare directives”, especially if they do not form part of a broader model of advance care planning (incorporating the flexibility required for unpredictable future circumstances); and the over-arching issue of logistics, as very many healthcare decisions are currently made in situations where the patient’s capacity is impaired. A key challenge will lie in balancing the emphasis on autonomy with principles of beneficence, mutuality and care.