16.2 Assisted Decision-Making (Capacity) Act 2015 & Informed Consent

Assisted Decision-Making (Capacity) Act 2015 & Informed Consent

The Legislative Transformation: On 26 April 2023, the Republic of Ireland brought into full commencement the Assisted Decision-Making (Capacity) Act 2015 (as amended by the Assisted Decision-Making (Capacity) (Amendment) Act 2022). This historic legislation dismantled Ireland's archaic 19th-century legal structure, formally repealing the Lunacy Regulation (Ireland) Act 1871 and abolishing the adult Wards of Court system. The Act aligns Irish law with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), shifting the legal paradigm from paternalistic substitute decision-making to a rights-based model of supported decision-making.

Every registered nurse practising in Ireland must understand that the historical standard of acting in an adult patient's "best interests" has been legally extinguished and replaced by a statutory obligation to ascertain, respect, and give effect to the individual's will and preferences.

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Core Guiding Principles (Section 8 of the 2015 Act)

Under Section 8 of the Act, every healthcare professional, court, and decision-supporter must adhere to statutory guiding principles when intervening in an individual's decision-making:

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|                  FOUR CORE GUIDING PRINCIPLES OF THE 2015 ACT               |
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|  1. Presumption of Capacity: Every adult is presumed capable of decisions   |
|  2. All Practicable Support: Must provide all supports before concluding lack|
|  3. Will & Preferences: Abolition of 'best interests'; honour patient will  |
|  4. Proportionality: Interventions must be least restrictive of rights      |
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1. Presumption of Capacity

Every adult (person aged 18 or older) is legally presumed to have capacity to make healthcare decisions unless proven otherwise through a functional assessment. A medical diagnosis (such as Alzheimer's disease, Down syndrome, major stroke, or schizophrenia) does NOT automatically establish a lack of capacity. Capacity must never be presumed absent based on a diagnostic label.

2. Duty to Provide All Practicable Supports

A healthcare provider cannot conclude that an individual lacks capacity until all practicable steps have been taken to assist them in making the decision. These steps include:

• Choosing the optimal time of day when the patient is most alert and lucid.
• Utilizing communication aids, visual charts, pictorial formats, or speech and language therapy.
• Creating a quiet, calm clinical environment free from alarms, ward distractions, and family pressure.
• Involving trusted relatives, advocates, or interpreters to facilitate communication.

3. Respect for Will and Preferences

The paternalistic standard of clinical "best interests" is abolished. Healthcare decisions must respect and give effect to the individual's past and present will and preferences, beliefs, and values. Even where a person lacks functional capacity to make a specific decision, interventions must align as closely as possible with what that individual would have chosen.

4. Least Restrictive Intervention and Proportionality

Any intervention must be the least restrictive of the person's freedom of action and rights. The intervention must be proportionate to the significance of the decision and the urgency of the medical situation.

The Right to Make an Unwise Decision

A cornerstone of Section 8 is that a person is entitled to make an unwise decision. Just because a patient makes a choice that doctors or nurses consider irrational, eccentric, foolish, or medically hazardous (such as refusing a life-saving blood transfusion or declining surgical resection of a tumor), this does not indicate a lack of capacity. A person with capacity has the legal right to make bad choices.

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The Functional Assessment of Capacity

The 2015 Act establishes a functional approach to capacity, replacing the outdated status-based model. Under the functional approach:

1. Decision-Specific: Capacity is assessed only in relation to the specific decision to be made at that time. A patient may have capacity to consent to taking oral antibiotics but lack capacity to understand the risks of complex multi-vessel coronary artery bypass grafting.
2. Time-Specific: Capacity is assessed at the exact moment the decision must be made. In conditions involving fluctuating cognition (such as delirium, sepsis, hepatic encephalopathy, or dementia with sundowning), a patient may lack capacity at 19:00 but possess full capacity at 10:00 the following morning.

The 4-Part Functional Test

A person is deemed to have capacity to make a decision if they can execute all four cognitive components:

If a person can satisfy these four steps with appropriate support, they legally possess decision-making capacity for that decision at that time.

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The Three-Tiered Decision Support Framework

The Act establishes three statutory tiers of decision support for adults who have difficulty making decisions, overseen by the Decision Support Service (DSS) within the Mental Health Commission:

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|                 DECISION SUPPORT SERVICE (DSS) THREE-TIER MATRIX            |
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| Tier 1: Decision-Making Assistant (DMA)                                     |
|   - Appointed by person; formal registered agreement                        |
|   - Assists in gathering info and communicating; PERSON DECIDES ALONE       |
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| Tier 2: Co-Decision-Maker (CDM)                                             |
|   - Appointed by person; joint registered agreement                         |
|   - Decision made JOINTLY; neither party can act unilaterally               |
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| Tier 3: Decision-Making Representative (DMR)                                |
|   - Appointed by Circuit Court when person lacks capacity                   |
|   - Court orders specific powers; DMR acts on person's WILL & PREFERENCES   |
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Comparison of Decision Support Tiers

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Advance Healthcare Directives (AHD) & Enduring Power of Attorney (EPA)

Advance Healthcare Directives (Part 8)

An Advance Healthcare Directive (AHD) is an advance legal document executed by a competent adult (aged 18+) setting out their healthcare preferences and treatment refusals for a future time when they may lack decision-making capacity.

• Binding Nature of Treatment Refusals: A refusal of medical treatment articulated in a valid and applicable AHD is legally binding on healthcare professionals. If a competent individual specifies that they refuse mechanical ventilation, hemodialysis, or blood transfusion, clinicians MUST comply, even if this refusal will result in death.
• Life-Sustaining Treatment: To refuse life-sustaining treatment (e.g., cardiopulmonary resuscitation, invasive mechanical ventilation, artificial nutrition and hydration), the AHD must contain an explicit statement confirming that the refusal applies even if the person's life is at risk.
• Treatment Requests: Requests for specific medical treatments in an AHD are NOT legally binding on clinicians, but must be taken into serious consideration during clinical planning.
• Designated Healthcare Representative (DHR): A person may appoint a DHR in their AHD. The DHR has legal standing to interpret the directive and ensure healthcare providers adhere to the person's stated will and preferences.

Enduring Power of Attorney (EPA)

Under the 2015 Act, modern Enduring Powers of Attorney (EPAs) are registered digitally with the DSS. While historical EPAs (under the Powers of Attorney Act 1996) dealt solely with property and finance, modern EPAs under the 2015 Act allow an appointed attorney to make personal welfare and healthcare decisions (excluding decisions covered by an AHD) once the donor loses capacity.

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HSE National Consent Policy & Emergency Exceptions

The HSE National Consent Policy operationalises the 2015 Act within public health services. Under Irish law, treating an adult patient without valid consent constitutes the tort of trespass to the person and the criminal offence of assault under the Non-Fatal Offences Against the Person Act 1997.

Criteria for Valid Consent

For consent to be legally valid in Ireland, four criteria must be satisfied:

1. Voluntary: Given freely without coercion, manipulation, or undue influence from family or healthcare staff.
2. Informed: The patient must be given clear, intelligible information regarding the diagnosis, nature and purpose of the intervention, anticipated benefits, material risks (risks of significant severity or frequency), and available alternatives.
3. Capacity: The patient must possess functional capacity at the time consent is obtained.
4. Ongoing: Consent is an ongoing communication process, not a one-time signature on a paper form. A patient can withdraw consent at any time.

The Doctrine of Necessity in Emergencies

In acute life-threatening emergencies (e.g., polytrauma, massive haemorrhage, sudden cardiac arrest, acute coma), when an adult patient lacks decision-making capacity and no valid AHD, DHR, DMR, or co-decision-maker is known or immediately available:

• Healthcare professionals may administer emergency treatment under the common law doctrine of necessity.
• Treatment must be strictly limited to what is immediately necessary to preserve life, prevent grave bodily injury, or alleviate severe pain.
• Clinicians must not perform non-urgent, elective, or irreversible procedures (such as organ removal or sterilisation) under the umbrella of emergency necessity.