Ireland’s Assisted Decision-Making Act: Navigating Capacity and Advance Healthcare Directives

Ireland’s Assisted Decision-Making (Capacity) Act 2015, fully commenced in April 2023, represents a significant shift in how decisions are made for adults who may have difficulty with capacity. The Act establishes a modern legal framework to support decision-making, replacing legislation dating back to the 19th century. Recent legal challenges, such as a case before the High Court involving an Advanced Healthcare Directive (AHD) and psychiatric treatment, highlight the complexities and evolving interpretations of this landmark legislation.

Understanding Decision-Making Capacity

The Act moves away from an “all or nothing” approach to capacity. Instead, capacity is assessed specifically in relation to the decision at hand and at the time the decision needs to be made. This means someone may lack capacity to make a complex financial decision but retain the capacity to choose what to eat for breakfast. The Act also acknowledges that capacity can fluctuate, particularly in cases of mental illness or cognitive impairment.

Decision-Making Support Options

The Act outlines three primary ways to support decision-making:

• Assisted Decision-Making: Individuals can appoint a ‘decision-making assistant’ – typically a family member or carer – through a formal agreement. The assistant helps the person access information and understand their options, but the individual retains ultimate decision-making responsibility. The Director of the Decision Support Service provides oversight.
• Co-Decision-Making: This involves a joint decision-making process where the individual and another person make decisions together.
• Decision-Making Representative: In situations where an individual consistently lacks capacity, a representative can be appointed to make decisions on their behalf.

Advance Healthcare Directives and the Law

An Advance Healthcare Directive (AHD) is a document outlining a person’s wishes regarding future healthcare treatments, including the right to refuse or request specific interventions. The 2015 Act provides a legal framework for AHDs, but their enforceability can be complex, particularly when interacting with mental health legislation.

Recent High Court Case Highlights Complexities

A recent case before the Irish High Court demonstrated the challenges in balancing a patient’s AHD with medical necessity. The Health Service Executive (HSE) sought a determination regarding the validity of an AHD created by a woman with a serious mental illness, opposing treatment with psychiatric medication. The HSE argued that the AHD was made when the woman lacked capacity and that psychotropic medication was “life-sustaining” in her case, meaning the AHD should not prevent treatment. The court heard that the woman’s treating psychiatrist and an independent psychiatrist both believed she likely lacked capacity when creating the AHD.

The case raised significant questions about the interaction between the Mental Health Act and the 2015 Act. The legal enforceability of an AHD can depend on the specific provision of the Mental Health Act under which a person is detained, and the level of risk they pose to themselves or others. The court allowed media reporting of the proceedings, recognizing the public interest, with stipulations to protect the woman’s identity and the privacy of healthcare professionals.

Key Considerations and Ongoing Challenges

The implementation of the Assisted Decision-Making (Capacity) Act 2015 presents several ongoing challenges:

• Subtle Decision-Making: Assessing capacity requires nuanced judgment from patients, healthcare staff, and the courts.
• Advance Healthcare Directives: Ensuring AHDs are appropriately implemented, especially in unpredictable circumstances, remains a key focus.
• Logistical Issues: Many healthcare decisions are made in situations where a patient’s capacity is impaired, requiring careful consideration of the Act’s provisions.

Balancing patient autonomy with principles of beneficence, mutuality, and care is central to the successful application of this Act.

Resources

• Citizens Information: Assisted Decision-Making Act
• Department of Justice: Assisted Decision-Making (Capacity) Act 2015
• HSE: Assisted Decision-Making (Capacity) Act 2015