Assisted Decision-Making Sarah Lennon Inclusion Ireland for Praxis Care Conference 2017

Who decides and how? People with disabilities, brain injury, older persons, mental illness often don’t have their right to make decisions available or respected. Yet when a person turns 18 s/he is an adult. 16 - Medical Decisions, 17 – Consent to Sex. No adult guardianship Ward of Court.

Lunacy Regulation (Ireland) Act 1871

Ward of Court Lunacy Regulation Ireland Act 1871 By virtue of being a lunatic/idiot/unsound mind a person is taken into wardship Typically because of finances (inheritance or damages) Very restrictive to decisions on health, finances, welfare, living arrangements or travel

Ward of Court All or nothing status-based approach Very difficult to reverse or get out of Costly, burdensome, heavy administration. Not compliant with UNCRPD which requires that people with disabilities enjoy capacity on an equal basis with others

Ward of Court

Law Reform 2003 ‘Who Decides & How’. 2005 Law Reform Commission Report on Vulnerable Adults and the Law. Several attempts to reform law (’07, ’08). 2013 Assisted Decision-Making Bill. 2015 Assisted Decision-Making Act. 2 parts commenced.

What does the Act say? All people should be presumed capable of making decisions unless the contrary is shown. Capacity is defined. People should be supported to make decisions first. Where decisions are being made, the capacity of the person to make their own decision should be built.

Defining Capacity A person can be said to lack capacity to make a decision if they are not able to understand the information relevant to the decision, retain that information long enough to make a voluntary choice, use or weigh that information as part of the process of making the decision, to communicate his or her decision in whatever way they communicate (not only verbally) Applies to EVERYONE – not just people with a disability or diagnosis

If I lack capacity, what does that mean? A person cannot lack capacity as a decision maker. There may be a question over a person’s capacity to make a particular decision at a particular time. This capacity may be regained at a different time and for a different decision.

If there is a question or doubt about decision-making capacity? The individual can select an assistant or co-decision-maker for themselves. A person can also have a decision-making representative appointed by court. For a representative to be appointed an assistant or co-decision maker must not be appropriate. The representative’s role is to ‘represent’ the will and preference of the person.

Who can be a Support? In the case of an Assistant or a Co-decision-maker it is the individual who chooses a person they trust. It is envisaged that it will be a family member or friend. A Decision Making Representative is appointed and it is envisaged to be a personal with personal relationship.

Who cannot be a Support Owners or registered providers or an employee or agent of designated centre or mental health facility in which the person resides cannot be named as assistants, co-decision makers or decision-making representatives.

The Decision Support Service Raise awareness about UN Convention & Act Supervise assistants, co decision-makers, representatives and attorneys. Appoint panels of representatives, court friends, special and general visitors. Keep a register of agreements, read reports. Deal with complaints and start investigations. Give advice to the court making a decision.

How will Decisions be Made? by the person autonomously By the person with assistance By the person with a co-decision maker Informally by another person By another person (representative or attorney) By the High Court for certain decisions Outside of the Court System Through the Court System

Case Studies Mike has an intellectual disability, his mother dies without a will and he and his sister Anne inherit equally. Anne wishes to sell the property but there is concern that Mike lacks Capacity to consent. Today – Mike could be made a Ward of Court. Post Act – Mike could have a co-decision maker or personal representative.

Case Studies Sally has a joint-bank account with her mother. Her mother dies and the her bank there is a large sum and Sally and her sister come in to withdraw it. Today – Bank account frozen. Ward of Court application. Potential financial abuse. Post Act – Joint accounts not needed. Sally could have a Co-DM, DSS can investigate complaints.

Case Studies Jack has an acquired brain injury following injury at birth. He receives a large sum of money in damages for his future care. Today – Court holds money pending application for wardship Post Act – An Assistant, Co-Decision-Maker or personal representative and review.

Case Studies Barry has an intellectual disability. His doctor has prescribed him medicine for high blood pressure. He is confused as to when he is to take the medication and wants some support. Today – Only Barry can give consent. Often a service provider or family member will ‘manage’ the medication. Post Act – Barry can have an ‘assistant’ of his choosing to support him.

More information http://www.inclusionireland.ie/capacity