What is it and why is it important?
What is the Assisted Decision Making (Capacity) Act 2015 and why is it important?
The Assisted Decision Making (Capacity) Act 2015 (ADMA) provides the statutory framework that will support all adults to make their own decisions in relation to all aspects of their lives.
Throughout our life, our capacity to make decisions about health, finance, and property may be compromised for a range of reasons. This Act places a legal requirement on service providers to enable a person to make a decision through the provision of a range of supports and information appropriate to their individual needs. All adults are presumed to have decision-making capacity under the Act. It takes a ‘rights-based approach’ to decision making, and a person cannot be regarded as being unable to make a decision unless all practicable steps to support them have been taken without success.
This legislation represents a major shift away from a ‘paternalistic’ or ‘best interests’ approach where decisions are made on a person’s behalf if their capacity is called into question (e.g. decisions such as consent to treatment, financial decisions, property related decisions, etc.).
International Policy Context – international rights instruments
- The European Convention on Human Rights has enshrined the right to self-determination.
- The 2006 UN Convention on the Rights of Persons with Disabilities also calls for states to facilitate people with disabilities to exercise their right to make choices and express preferences in relation to their care.
- In December 2009, the Council of Europe issued a recommendation that noted that where legal systems provide for advance care directives, increasing numbers of people avail of them. The statement recommended that Member States promote self-determination for adults in the event of their future incapacity by means of powers of attorney and advance directives.
- In February 2014, a Council of Europe recommendation on the promotion of human rights of older people stated that older people are entitled to lead their lives in an autonomous manner, which encompasses the making of independent decisions with regard to all issues that concern them. This includes decisions regarding property, income, finances, place of residence, health, medical treatment or care, as well as funeral arrangements. The statement recommended that Member States should provide for legislation that allows older people to regulate their affairs in the event that they are unable to express their instructions at a later stage.
As well as Ireland, advance care directives enjoy legal status in countries such as the USA, England and Wales (in certain circumstances), Germany, the Netherlands, New Zealand, Canada and Australia.