The impending 2023 commencement of the Assisted Decision-Making (Capacity) Act 2015 (“the 2015 Act”) will no doubt be much welcomed by NGOs advocating for and serving persons who may be lacking capacity. It represents a more modern understanding of mental capacity and gives recognition to the fundamental importance of legal capacity and self-determination as human rights.
Briefly, once commenced, the 2015 Act will abolish wardship and introduce three types of support arrangements for people who currently, or may shortly, face challenges when making certain decisions (“relevant persons”). It also provides for people who wish to plan ahead for a time in the future when they might lose capacity, by way of an advance healthcare directive, or enduring power of attorney.
For NGOs providing supports to persons impacted by decision-making and capacity, the 2015 Act provides a framework for improved legal certainty in decision-making, and one which has a clear basis for supporting the person according to their will and preferences, through advance planning and other tiered decision-making supports. It will empower service users and reduce the burden on service providers who might be faced between a choice of legal uncertainty as to the validity of decisions on one hand, and the possibility of archaic wardship.
However, the complex and dense legislation, and the multifaceted decision-making framework and the regulatory aspects therein may appear overwhelming to NGOs and beneficiaries alike. Here, I try to identify some aspects of the new regime that should be monitored by NGOs operating in the area.
Key to success of the regime will be comprehensively engaging with stakeholders, by listening to concerns, highlighting benefits, and addressing misconceptions. It is possible that many stakeholders might be overwhelmed by the regulatory aspects of the legislation and the duties on decision-supporters. Some may prefer the status quo situation, where decisions are made by “next-of-kin”. NGOs working in the area of disability services or advocacy should be monitoring concerns and challenging misconceptions. Stakeholders should be reminded of the importance of self-determination and legal capacity, and the benefits of legally certain decisions.
Second, the guiding principles in section 8 of the 2015 Act must be adhered to in all interventions under the Act in respect of a relevant person. These principles are varied and accordingly leave some discretion to interveners under the Act. Parties serving and working with relevant persons should ensure that this discretion does not inadvertently lead to a creeping return of paternalistic “best interests” decision-making. Of course, if there are suspected breaches of the guiding principles by a decision-supporter, a complaint can be made to the Decision Support Service, the regulatory body established to oversee implementation of the 2015 Act, who will have the power to, among other things, resolve complaints informally by provision of information and guidance.
Further, the 2015 Act employs a decision-specific and time-specific functional assessment of capacity. Accordingly, to prove that a person lacks capacity, it must be shown that they are unable to understand, retain, use or weigh information relevant to that decision, or communicate their decision with assistance. The identification of “relevant information” to a decision will be of critical importance. There have been significant appeals in England and Wales on the determination of which information is relevant. While section 138 of the 2015 Act specifically excludes “sexual relations” from its remit, the recent UK Supreme Court case of A Local Authority v JB [2021] UKSC 52 addressing that issue is useful in its consideration of the question of the extent to which it is fair to require some persons to understand certain information, and at what point is the information deemed relevant too onerous. (For further discussion, see Aisling Mulligan and Ciara Dowd, “Lessons From the Court of Protection”, Irish Law Times 2023 (Forthcoming)).
Accordingly, parties applying the functional assessment of capacity should be careful to not require the relevant person to understand information that is irrelevant, or information which one would not expect a person whose capacity is not in doubt to be able to understand and retain.
It will be difficult for NGOs to monitor the implementation of the 2015 Act. Most supported decisions will of course be made in private, subject to reporting obligations to the DSS. Court hearings in respect of Part 5 of the 2015 Act will be held in camera and not every judgment will be written and published. The Assisted Decision-Making (Capacity) (Amendment) Bill 2022 will, however, permit reporting of hearings, in a similar fashion to the Childcare Law Reporting Project. If such a project is arranged for 2015 Act litigation, it will be a hugely important asset to the work of advocacy bodies.
In conclusion, NGOs working with and for persons lacking capacity will have an important role in promoting the success of the new decision-making framework and guarding against misinformation and backsliding to paternalistic old ways.
This article is based on an event on Amendments to the Assisted Decision-Making Act, presented by the author and Fiona McNulty at a session coordinated by PILA for Ireland Pro Bono Week 2022. The author is grateful to Mervyn Taylor for his comments on an earlier draft.