Act is vital step to protect vulnerable people

Vulnerable adults will have substantial protections under new legislation, says Colm Burke, TD, as the Assisted Decision-Making Act takes effect from June. Deputy Burke tells us what this means
Act is vital step to protect vulnerable people

THE Assisted Decision-Making Act will take effect from June of this year, and will bring substantial changes for vulnerable adults who need support.

The Act, which has been in force since 2015, will be updated to increase the level of legal autonomy enjoyed by vulnerable adults who may need support in their decision-making capacity. It is designed to support vulnerable adults make decisions about their well-being with support from those who are close to them. 

Crucially, it ensures that vulnerable adults are protected from coercion and abuse when making important decisions.

The current system relies heavily on outdated laws when it comes to deeming vulnerable people unable of making their own decisions. The new legislation will ensure the ability of a person to make decisions is recognised, supported, and protected. It will be only after all feasible measures have been taken to determine otherwise, will any person be deemed to lack decision-making capacity. An intervention in a person’s decision-making authority, then, is seen as a last resort. When this must be done, respect and consideration will need to be given to the past preferences of the person. Furthermore, the intervention must promote and encompass the person’s role in the intervention as much as possible. Views of individuals named by the person and those who care of him or her, must also be considered.

The Act sets out in detail how this process of inclusion should unfold. It recognises situations where a person can make decisions for themselves but may also require support of family members or other trusted individuals. A person in this situation, can enter a ‘decision-making assistance agreement’. This allows individuals to appoint a trusted person as an ‘assistant’. Be it a family member or friend, the assistant would help by giving advice and support to the appointer when making decisions about their welfare. These decisions would be seen as the Appointer’s decisions. Assistants would help in expressing the interests of the Appointer and they would ensure that decisions are implemented. The autonomy of the Appointer is paramount.

To ensure the protection of vulnerable persons, this act ensures there are safeguards in place to ensure the appointment of a decision-making assistant is in a person’s best interest. 

An assistant, for example, cannot have carried out a crime against the Appointed or be a worker in a health facility where that person lives.

Co-decision-making agreements are also an option for those who may have reduced decision-making capacity. This is a more advanced form of decision-making support. A registered Doctor must verify that an Appointer is in need of assistance in decision-making and is capable of entering into this type of agreement willingly. These agreements must be in writing, signed and witnessed. In this case, a person appoints a trusted person to become a co-decision-maker (CDM). This co-decision-maker (CDM) is tasked with determining the will of the Appointer. They will help the Appointer in understanding decisions and their possible outcomes. 

The CDM must also respect the will of the Appointer unless it poses great harm to the Appointer. Furthermore, they must provide reports to the Director of the Decision Support Service of their actions in relation to the agreement. As with decision-making assistants, there are safeguards in place to ensure protection of the vulnerable individual. 

For example, any person can make a complaint to the Director regarding the suitability of someone to be CDM.

It is often the case that there a many people who have interest in a person’s welfare. The Act also awards the court the authority to assign decision-making representatives. Any person with a bona fide interest can apply to support a person who does not have capacity to make decisions. In this case, the representative acts with reference to the known and past preferences of the person should the court rule them incapacitated. Family members or those involved in the care of the individual would be prioritised in applications to this role. Upon successful application, the representative would then have the authority to make decisions relating to the support and well-being of the individual. 

This Act highlights the protection of the incapacitated person’s autonomy. 

For example, it maintains the court must consider any known preferences of the person, family relations, and possible conflicts of interest in appointing a representative.

This Act is a vital step forward in the protection of vulnerable people across the country. It understands the complex nature of decision-making when it comes to the well-being of people who face health challenges. It offers much-needed protection of the autonomy of individuals and control over their care and provides a legally recognised framework for support from people close to them.

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