The cornerstones of the Assisted Decision-Making (Capacity) Act 2015 https://www.oireachtas.ie/documents/bills28/acts/2015/a6415.pdf (the Act) are the provisions on the functional approach to decision making capacity ( s.3 of the Act) and the guiding principles which are to apply in relation to any interventions under the Act (s.8 of the Act).
These two hugely important provisions are already enshrined in common law and best practice but have been given statutory effect and will become statutory obligations upon the commencement of the 2015 Act. In the meantime, people should be aware that there is a presumption in common law that every adult has the capacity to make a decision unless the contrary is clearly indicated and that the High Court in Fitzpatrick v K (No. 2)  IEHC stated that decision-making capacity is to be defined on a functional or decision specific basis. Capacity is to be assessed by solicitors on the client’s ability to understand the nature and consequences of a decision in the context of available choices at the time the decision is being made. Solicitors/Carers/ Family/ Guardians should not make across-the-board assessments of capacity but should treat decision-making capacity as issue specific and time specific. The assessment of capacity to make a decision is a legal test.
This functional approach is also contained in:
- HSE National Consent Policy (see Chapter 5 – Has the service user capacity to make the decision?) and
- the Medical Council’s Guide to Professional Conduct and Ethics for Registered Medical Practitioners (7th edition 2009 and8th edition 2016 – see Chapter 3, Part 10 – Capacity to Consent).
International human rights standards require that a person is supported and assisted to maximise his or her decision-making abilities. We should ensure, in particular when dealing with vulnerable clients, that all practical steps are taken to permit, encourage and facilitate a client to make a decision prior to any determination that the person does not have decision-making capacity and that only necessary steps are taken to intervene with a person’s decision-making.
A person should not be considered unable to make a decision in respect of any matter merely because they have made or are likely to make an unwise decision – however, in this context, it is very important to ensure that the client has a full understanding of the risks and an ability to weigh up the information relevant to the decision.
If an enduring power of attorney is registered, attorneys should ensure, where appropriate, that the donor of the enduring power of attorney be permitted and encouraged to participate in any decision affecting him/her as donor. This is a requirement under the Powers of Attorney Act 1996 and under the 2015 Act when commenced.