The European Union’s General Data Protection Regulations (GDPR) Regulation (EU) 2016/679 will have direct effect in Ireland on 25 May 2018
Commencement of the 2015 Act
The process of commencement of the 2015 Act is now underway:
- I. No. 515/2016 brought some provisions of Part 1 (Preliminary and General) and Part 9 (Director of the Decision Support Service) of the 2015 Act into operation on 17 October 2016. Those provisions were brought into operation in order to enable the process of recruitment of the Director of the Decision Support Service to begin.
- I. No. 517/2016 was signed by the Minister of Health on 13 October 2016. That Order provided for the commencement on 17 October 2016 of section 91(2) of the 2015 Act, namely the establishment by the Minister for Health of a multidisciplinary working group to make recommendations to the Director of the Decision Support Service in relation to codes of practice pertaining to the advance healthcare directive provisions of the 2015 Act.
Progress is therefore well underway within relevant Departments to permit fuller implementation of the 2015 Act.
The new Act is to be welcomed as it will transform the way that decisions will be made in relation to an individual’s personal welfare and their property affairs. The Act provides a statutory framework for individuals to make legally-binding agreements to be assisted and supported in making decisions in these important areas in the event of there being any issues in relation to capacity now or in the future. The legislation will also allow an individual to determine his or her health treatment in the event he or she loses capacity to make such decisions in the future.
The Act sets out the guiding principles that are intended to safeguard the autonomy and dignity of the person with impaired capacity. There is a presumption that the person has decision-making capacity unless the contrary is shown. No intervention should take place unless it is necessary and unless all practical steps have been taken, without success, to help the person make the relevant decision themselves. This assistance and support is particularly required where the person lacks, or may lack, the capacity to make the decision unaided.
The number of people for whom the Act may be relevant , including individuals with dementia and other conditions mainly attributable to old age, as well as individuals with intellectual disability or those who may have difficulty communicating, is therefore significant.
The key features of the legislation include:
- The abolition of wardship and the repeal of the Lunacy Regulation (Ireland) Act 1871.
- The introduction of a functional test for assessment of capacity, this allows for changes in a person’s capacity over time.
- The introduction of guiding principles which must be applied in relation to decisions made pursuant to the 2015 Act including a presumption of capacity and requirements to provide necessary support and assistance to individuals to enable them to make decisions.
- Where a person’s capacity is in question, or may shortly be in question, individuals can formally appoint a decision making assistant or co-decision maker to help them to understand the issues and make and communicate their decision, depending on their needs. Both will be subject to supervision by the Director of the Decision Support Service who will be appointed when the Act is commenced. The Director will have a wide reaching role in relation to matters such as implementation, supervision, provision of information and the promotion of public awareness in relation to the legislation.
ADVANCE HEALTHCARE DIRECTIVES
In line with this Act’s focus on respecting the will and preferences of the individual, the legislation provides for the making of Advance Healthcare Directives. An Advance Healthcare Directive is an advance instruction in writing, made by a person with capacity, about how he/she wishes to be treated if certain circumstances arise , for if and when they no longer have capacity.
The Advance Healthcare Directive may be a stand-alone directive or the person may appoint a Designated Healthcare Representative to exercise such powers as conferred by the person under the Directive. An Advance Healthcare Directive must be in writing, signed by both parties to it (if a Designated Healthcare Representative is being appointed) and witnessed by two people. A person who has capacity may alter or revoke their Advance Healthcare Directive at any time- this must also be witnessed.
Under the Assisted Decision Making (Capacity) Act, once all of the legal requirements are met and an Advance Healthcare Directive is valid, a healthcare professional must comply with it, even if they do not agree with the patient’s decision.
Where there is any doubt as to the validity or applicability of an Advance Healthcare Directive, the healthcare professional must try to resolve this by consulting with the designated healthcare representative ( if there is one) or, if there is none, with the patient’s family.
There is a safeguard for healthcare professionals in that if they fail to comply with an Advance Healthcare Directive, provided they had reasonable grounds to believe that it was not valid or applicable, no civil or criminal liability will apply.
The Assisted Decision Making (Capacity) Act 2015 distinguishes between treatment refusals and treatment requests. In terms of treatment refusals, the Act provides that these shall be binding, provided the following conditions are met:-
- At the time in question, the directive maker lacks capacity to consent to the treatment,
- The treatment being refused is clearly identified in the directive, and
- The circumstances in which the refusal applies are clearly identified.
In terms of treatment requests, however, the 2015 Act states that such requests are not legally binding but they shall be taken into consideration during any decision-making relating to treatment, provided the specific treatment is relevant to the patient’s condition.
ENDURING POWERS OF ATTORNEY
The Assisted Decision-Making (Capacity) Act 2015 defines an Enduring Power of Attorney as an arrangement whereby a Donor (being the person who may lack capacity in the future) gives a general power to an Attorney (the person providing assistance) to act on their behalf. This may be in respect of all or some of the person’s property and affairs or to do specified things on the person’s behalf such as making personal care decisions.
It is of fundamental importance to note that the concept of “personal care decisions” does not include healthcare decisions (although the borderline between personal care decisions and healthcare decisions is not always clear)
An Enduring Power of Attorney created under the Powers of Attorney Act 1996 will still have effect after the Assisted Decision-Making (Capacity) Act 2015 is commenced. Following commencement of the 2015 Act, however, no new Enduring Power of Attorneys will be created under the 1996 Act.
Under the 2015 Act, an Enduring Power of Attorney does not come into force until the person lacks capacity in relation to one or more of the decisions specified in the Enduring Power of Attorney and the instrument creating the Enduring Power of Attorney is registered with the Director of the Decision Support Service.
The Enduring Power of Attorney cannot contain any decision relating to the refusal of life-sustaining treatment, or any item already covered by a pre-existing Advance Healthcare Directive.
Making an Advance Healthcare Directive.
Once the provisions of the 2015 Act relating to Advance Healthcare Directives are commenced, it will be possible to create an Advance Healthcare Directive and you can contact our offices in this regard. We will keep the site updated with updates on commencement of the Act.