The Assisted Decision-Making (Capacity) Act 2015 provides for a range of decision supporters, called Interveners, who can be appointed to support a person whose capacity is in question to make their own decisions regarding their personal welfare, property or affairs. There are different levels of decision supporters with increasing levels of function and responsibility. Therefore a person can receive support at the appropriate level to ensure there is limited restriction on their autonomy.
At the lowest level a person can appoint someone who they trust as a Decision-Making Assistant to support them to access information and assist them to make a specific decision, the person makes the decision themselves with this assistance.
If a person needs a higher level of support they can appoint a person they trust as a Co-Decision-Maker to support and advise them regarding the decision by accessing and explaining the relevant information. The Co-Decision-Maker and the person make the decision together.
At the next level, and only in circumstances where a person is considered to lack capacity to make the specific decision, someone appointed under an Enduring Power of Attorney or an Advance Healthcare Directive can make the relevant decision. If the person has not planned ahead with an Enduring Power of Attorney and/or an Advance Healthcare Directive the Circuit Court can appoint a Decision-Making Representative to make the decision on behalf of the person.
All Interveners must follow the Guiding Principles when carrying out any action, decision or intervention relating to a person whose capacity is in question, or who lacks capacity. Codes of Practice are currently being developed for the Intervener roles which will be available from the Decision Support Service
Assistance to gather information & express will and preference
The person has one or more decisions to make and in order to do that require access to and an understanding of certain information in order to consider all of the options. The person's ability to make the decision is in question, or will shortly be in question. The person can appoint a Decision-Making Assistant under an agreement.
Decision-Making Assistant Agreement
Assistance, advice and help to jointly make the decision
The person has one or more decisions to make and is unable, or will shortly be unable, even with access to information and options to properly use that information and consider the options without assistance and advice. The person can appoint a Co-Decision-Maker under a registered agreement to work through information and options, and to make the decision together.
Role of Co-Decision-Maker
Making a healthcare decision on a person's behalf who has planned ahead
The person is considered to lack capacity to make particular healthcare decisions. The person had planned ahead and at a different time in their life had created an Advance Healthcare Directive (AHD) setting out what healthcare treatments they do not want or would like to request if they are unable to make healthcare decisions. The person has appointed a Designated Healthcare Representative in their AHD who can act for so long as the person lacks capacity.
Designated Healthcare Representative
Advance Healthcare Directive
Circumstances when AHD is not applicable
Making a personal welfare, property or affairs decision on person's behalf who has planned ahead
The person is considered to lack capacity to make a specific decision about their personal welfare, property or affairs. The person had planned ahead and at a different time in their life had created an Enduring Power of Attorney setting out their wishes to be followed if they are unable to make healthcare decisions. The person has appointed one or more persons to be their Attorney under an Enduring Power of Attorney.
Enduring Power of Attorney (EPA)
Making a decision on person's behalf who has not planned ahead
Where a person is considered to lack capacity to make the specific decision, and the person has not planned ahead for this type of decision an application is made to the Circuit Court to appoint a Decision-Making Representative to make the decision on behalf of the person in accordance with the Guiding Principles.
Role of Decision-Making Representative (DMR)
Factors to determine suitability of a Decision-Making Representative (DMR)
Under the Assisted Decision-Making (Capacity) Act 2015 the presumption of capacity, functional approach to capacity, Guiding Principles and the types of Decision Supporters provides a decision support sequence which can be followed in stages. There is a hierarchy of Decision Supporters (Interveners). Where a person is considered to lack capacity to make the specific decision, an Advance Healthcare Directive will take precedence. For non-healthcare decisions or if a person does not have an Advance Healthcare Directive, the Enduring Power of Attorney will take precedence. If neither an Advance Healthcare Directive or Enduring Power of Attorney are in place for the specific decision, the next level is a Decision Supporter appointed by the Circuit Court, followed by a Co-Decision-Maker and a Decision-Making Assistant. If none of these Decision Supporters (Interveners) are in place, the person is supported to appoint a Decision Supporter at the appropriate level to reflect the person's need for support to make the specific decision.