The Assisted Decision Making (Capacity) Act 2015 (‘the Act’), was enacted in December 2015 but most of its provisions have not yet, one year later, come into force. Once in force, the Act will repeal the Lunacy Regulations (Ireland) Act, 1871 and will have far-reaching, and arguably life-changing, consequences for persons with impaired capacity. What does it mean though, in practical terms for medical practitioners?
Under the Act the capacity of a relevant person (as defined in s2 of the Act) shall be construed functionally and ‘shall be assessed on the basis of [their] ability to understand, at the time the decision is to be made, the nature and consequences of the decision to be made by [them] in the context of the available choices at that time (s3(1) of the Act).
The Act now provides, on a statutory footing (s8 of the Act), the long established common law presumption, that a person has capacity unless the contrary is shown, and the burden of proof (on the balance of probabilities) lies with the person asserting a lack of capacity. Pursuant to Section 3 of the Act a person is shown to lack capacity to make a decision if they are unable:
to understand the information relevant to the decision;
to retain that information long enough to make a voluntary choice;
to use or weigh that information as part of the process of making the decision; or
to communicate [their] decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, if the implementation of the decision requires the act of a third party, to communicate by any means with that third party.
This language all sounds rather familiar, doesn’t it? It should; the functional approach to assessing capacity has been a fixture in the Medical Council’s Guide to Professional Conduct and Ethics (7th and 8th Edition) as well as the HSE’s National Consent Policy (2013) since the High Court in 2008 [Fitzpatrick v K(2)] recognised the Law Reform Commission’s recommendation that capacity ‘will be understood in terms of an adult’s cognitive ability to understand the nature and consequences of its decision in the context of available choices at the time the decision is made’.
The Act then, does not re-invent the wheel, as far as ‘capacity’ and mental practitioners are concerned. What it does, however, is change what was a moral or ethical guideline into a statutory and legal obligation, on both medical and legal practitioners alike.
Although the Act imposes a legal obligation on practitioners to assess capacity functionally, the Act does not provide a statutory ‘functional test’ for practitioners to follow; but perhaps that is the very point.
The Act then does not re-invent the wheel. What it does, however, is change what was a moral or ethical guideline into a statutory and legal obligation, on both medical and legal practitioners alike.
Traditional medical or ‘status’ approach assessments were designed to assess a person’s capacity globally. By using tools such as the Mini Mental State Examination, a practitioner could tick boxes on a form and thereby calculate a result which deemed whether a person had passed or failed; had capacity or not; had capacity for everything, or nothing at all.
Functional assessments, however, require an issue and time specific approach. A person may not have capacity to make a specific decision in the moment, but they may have that capacity later that afternoon or the following week. If a person is being assessed for the capacity to execute an Enduring Power of Attorney (‘EPA’), for example, the assessment should be very much geared towards that, and only that. General questions on daily life may give a practitioner an overall picture of the person they are dealing with but a person’s belief that Charles Haughey is still Taoiseach can no longer be seen as indicative of whether they understand the nature of an EPA, or the power the donor is granting to their chosen Attorney(s) or the consequences for the donor, of losing their mental faculties, should the EPA be executed.
It is this ‘à la carte’ approach to capacity, that practitioners will be legally required to adopt once the act comes into force. The black or white, ‘yes’ or ‘no’ view of capacity will be a thing of the past.
It should be remembered that the assessment will start from the position that the person has capacity (as per the statutory presumption). However, it has been considered as inappropriate (by the Court of Protection of England and Wales in CC v KK and STCC ), when assessing capacity, to simply start with a blank canvas; a person under evaluation must be presented with detailed options so that their capacity to weigh up those options can be fairly assessed.
A pitfall practitioners should be wary of, is falling into an ‘outcome based’ approach to assessing capacity, where a person is deemed not to have capacity on the basis that the assessing practitioner does not agree with the decision reached after the options have been purportedly weighed up and processed by the assessed person. It is the ability to understand and weigh up that information that is ultimately being assessed, not the quality of the subsequent decision. An unwise decision following consideration of the options presented, does not equate to a lack of capacity.
Perhaps the High Court in England, in the KK case, summarised the dilemma best when stating: ‘In cases of vulnerable adults, there is a risk that all professionals involved in treating and helping that person – including, of course, a Judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult, and thus, in certain circumstances, fail to carry out an assessment that is detached and objective’.
The role of the professional practitioner (medical and legal) will soon change from capacity assessor to capacity enabler, and once the Act comes into force the obligations of the practitioner will also shift from ethical to legal. The consequences of breaching those obligations remain to be seen. The HSE has set up a Decision-Making Steering Group, which one would hope, will produce detailed guidelines to assist practitioners in complying with their upcoming legal obligations; or at the very least the Steering Group should have the capacity to do so.
JOHN QUINN is a Senior Associate in Noble Law’s Medical Regulatory Law Group.