One year on: The Assisted Decision Making (Capacity) Act explored

26 April 2024 marks one year since the Assisted Decision-Making (Capacity) Act came into effect. Here we revisit what this law is about and some ways in which it’s relevant to mental health.

What is the Assisted Decision-Making law about?

This law is a step forward in strengthening people’s human rights in Ireland, and especially the rights of people with disabilities. It is based on a key human right set out in the United Nations (UN) Convention on the Rights of Persons with Disabilities: the Right to Equal Recognition Before the Law. This includes the right to make decisions about important parts of our lives, and to access support to make decisions if we need it.

At different stages in our lives, for a variety of reasons, we may have difficulty making decisions about important issues. This might be due to physical or mental health reasons, or because of an intellectual disability.  

Under the law, assisted decision-making means that our will and preferences are at the centre of decisions about our lives, even at times when we may be unable to communicate them clearly by ourselves. A person’s “will” is about their values, beliefs and goals, and a person’s “preferences” means a greater liking for one choice over another.

The Assisted Decision-Making law sets out that it should be presumed that we all have the capacity to make decisions about things that affect us. It also sets out that we have the right to help and support to make decisions when we need it. These may include decisions about our healthcare, our personal welfare, our property or personal affairs.

If we are unable to make a decision about something at a particular time, the law sets out that those around us, including health professionals, need to:

• respect our will and preferences
• consult with important people in our lives
• take action only when it is necessary
• intervene in the least restrictive way to our rights and freedoms.

What about mental health difficulties?

This law applies to everyone. If we are experiencing mental health difficulties and or accessing mental health services, it should be presumed that we have the capacity to make our own decisions about things in our life.

Mental health services and professionals must follow the law and ensure they are respecting people’s decision-making rights. This includes supporting people to make decisions if they need help. For example, someone might need information in different formats, such as in Plain English, or to use a communication aid, to help them make a decision. A person might also need extra time to go through their options. If there are concerns about a person’s ability to make a particular decision at a particular time, they must follow the guidelines set out in the law. This includes upholding people’s decision-making arrangements where they are in place, and ensuring a person’s will and preference remains the focus of decision-making.

What about AHDs and mental healthcare?

AHDs can be made to future plan for mental healthcare treatment. This might include listing things like treatments or approaches that have worked well for you before with particular experiences or health difficulties. It can also include things that you know you do not want to happen; for example; receiving a specific medication for something. They are only used if a person is found to not have the capacity to make decisions about their healthcare for a time.

Mental health services must comply with any refusals of treatment in a valid AHD where they apply. They must also consider your preferences for treatment in planning your care. If you have appointed someone to act on your behalf in relation to the AHD, your treating team must engage with them to help them apply it.

There is one important exception to this in the law, as it is currently set out. If someone is involuntarily admitted to hospital due to risk of harm to themselves or others, a mental health service does not have to adhere to refusals of mental health treatment listed in an AHD. However, they should still give consideration to the AHD as an important indication of a person’s will and preference.