A guide to assisted decision-making

Ms Aisling Timoney provides an introduction to the new assisted decision-making legislation

Assisted decision-making legislation commenced on 26 April 2023.

A detailed summary and analysis of the legislation is beyond the scope of this article which is intended as an introduction only.

It may be useful to think of the new legislation as having a 3:2:1 impact.

• The legislation creates three tiers of decision-making support for people who
  lack capacity.

• The legislation provides for two types of future decision-making arrangements, for people who want to plan for a time in the future when they may lack capacity.

• It makes one other significant change, which is to abolish the wardship regime.

A. Assisted decision-making agreement

With an assisted decision-making agreement, the person is still making their own decision, with help. Through a formal written agreement, they can appoint a decision-making assistant. The agreement gives that assistant legal status to help them make decisions within the scope of that agreement.

Considerations

The assistant is helping only and is not authorised to make a decision for or with the person.

If you want to find out if someone else has a decision-making assistance agreement, you can ask to see a certified copy of their agreement.

This scenario is similar to a situation where, for example, an elderly patient is accompanied in consultation by an adult child who comes in to support them, to be an extra set of ears and to ask any questions they might forget. Doctors already accommodate this kind of arrangement daily.

In this new scenario, the arrangement will be on a legal footing with a written agreement behind it. The Decision Support Service (DSS) will not maintain a register of these agreements, which expire after three years.

B. Co-decision-making

Co-decision-making means joint decision-making. It envisages the person and their appointed joint decision-maker reaching a decision together.

Again, this is based on a written agreement which follows a prescribed format and execution procedure. It must be made with notice to certain parties who can object, and must be submitted to the DSS, which will maintain a register. Once registered, any decision within its scope cannot be challenged on the basis the person lacked capacity. It can be varied or revoked so long as the person still has capacity.

Considerations

In practice, doctors will be dealing with joint decision-makers. If you are wondering whether such an agreement exists, what the scope of it is, or who may be appointed under it, you can ask to see a certified copy of the agreement or alternatively, you can search the DSS register.

Any decision that was intended to come within this type of agreement cannot be made otherwise than in accordance with it. The DSS will have more oversight over this type of arrangement, including a complaint handling function.

C. Decision-making representative

When a person lacks capacity, a court can appoint a suitable person to be their decision-making representative (DMR). Usually, the court will appoint someone suitable who is known to the person, but the court can appoint a professional DMR from a panel of trained experts established by the DSS. When a court appoints a DMR, it will notify the DSS and send it a copy of the court order.

The role of the DMR is to ascertain the person’s preference and to help them communicate that by making the decision for them. The power is to be as limited in scope and duration as possible.

Considerations

In practice, doctors will be looking after the patient’s best interests and involving them as much as possible, but looking to the DMR for decisions. It is open to doctors to check the register and seek a copy of the order to understand its scope if necessary.

The DSS will have rigorous oversight of this type of arrangement. The DMR will be required to submit a written report to the DSS each year. The court will continue to check on an ongoing basis that the arrangement is working as it should. Only the court can vary a decision-making representation order.

The three tiers of decision-making support constitute an ascending scale of intervention

A. The lightest touch support arrangement is assisted decision-making.

B. The middle ground is joint decision-making.

C. The highest level of intervention is the appointment of a decision-making representative.

Two types of future decision-making arrangements

The legislation provides for two types of future decision-making arrangements, for people who want to plan for a future time when they may lack capacity. These arrangements relate to enduring powers of attorney and advanced healthcare directives and neither concept is new.

1. Enduring powers of attorney

An enduring power of attorney (EPA) is a written legal instrument in a particular format and executed according to a prescribed two-stage process that doctors may already be familiar with from requests to certify capacity at execution and at registration stage.

It is a requirement that notice is given to specified parties who may object to the creation of the EPA. EPAs do not take effect until the donor loses capacity and the EPA is registered. Again, objections can be made at registration stage.

Considerations

EPAs may be varied and revoked so long as the donor has capacity.

The DSS will have a new role monitoring and supervising attorneys, and will maintain a register of EPAs, which doctors can search.

An enduring power cannot include power to consent to or refuse treatment on behalf of the donor. An advance healthcare directive is needed to plan for treatment decisions (see below).

2. Advanced healthcare directives (ahd)

An advanced healthcare directive (AHD) lets someone record their wishes regarding medical and healthcare treatment in case they are unable to make these decisions in the future.

They can appoint someone they know and trust as their designated healthcare representative to act on their behalf within the scope of the AHD. A designated healthcare representative can agree to, or refuse treatment on the donor’s behalf, based on the AHD. 

An AHD must be made in writing and signed by the donor, two witnesses, and by the designated healthcare representative (DHR), if there is one.

It is recommended, but not required, to tell the DSS when making an AHD. If the format prescribed by the DSS is used, the DSS will review it to make sure it meets the legal requirements. AHDs can be varied or revoked so long as the donor has capacity.

Refusing treatment

A person aged 18 with capacity may refuse treatment for any reason even if that refusal is unwise and might lead to death. A refusal of treatment set out in an AHD shall be complied with if:

• The donor lacks capacity;

• The treatment to be refused is clearly identified; and

• The circumstances in which the refusal is intended to apply are clearly identified
  and applicable.

‘Basic care’, which includes warmth, shelter, oral nutrition and hydration, and hygiene measures cannot be refused under an AHD.

Requesting treatment

Requests for treatment under AHDs are not legally binding, but must be considered. If a request is not complied with, a doctor has seven days to explain why to the DHR.

Safeguards for healthcare professionals

The legislation includes welcome safeguards for doctors. Civil or criminal liability will not attach to a doctor who:

• Complied or tried to comply with what they reasonably believed was a valid, applicable AHD;

• Did not comply with a refusal of treatment if they reasonably believed an AHD was not valid or applicable, or had no reason to believe the AHD existed;

• Did not comply with a refusal of treatment in an AHD if they believed an AHD existed, but had no access to it and due to emergency circumstances could not reasonably delay taking action.

Considerations

Patients should provide a copy of their AHD to any healthcare professional who may provide them with treatment.

A patient can vary or end their AHD at any time if they have capacity and this must be done in writing.

It is advisable to review an AHD regularly so that it is up to date and reflects the donor’s wishes. For example, it might be timely to review an AHD following any major medical treatment or diagnosis.

If an AHD is not clear and time permits, speak to the donor’s representative, or family and friends and seek a second medical opinion to try to resolve the ambiguity. If the matter is unresolved or if time does not permit enquiries in an emergency, act in favour of preserving life. 

One other key change –abolition of wardship

The current wardship regime will be replaced by assisted decision-making based on the adult’s ability to make a particular decision at a point in time.

As mentioned above, detailed guidance has been published by the DSS. We recommend that doctors familiarise themselves with the relevant codes of practice. Doctors with specific queries should consider contacting the DSS and or their indemnifiers for guidance.