The Assisted Decision-Making (Capacity) Act 2015 provides a modern statutory framework to support decision-making by adults with capacity difficulties. The Act was signed into law on 30 December 2015.
New administrative processes and support measures, including the setting up of the Decision Support Service within the Mental Health Commission (a body under the Department of Health), must be put in place before the substantive provisions of the Act can be commenced.
A high-level Steering Group comprised of senior officials from the Department of Justice and Equality, the Department of Health, the Mental Health Commission (MHC) and the Courts Service, together with the Director of the Decision Support Service, is overseeing the establishment and commissioning of the Decision Support Service (DSS) and this work is ongoing. The Steering Group meets approximately once a month to monitor progress.
A number of provisions of the Act were commenced in October 2016 in order to progress the setting up of the Decision Support Service. The Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) Order 2016 (S.I. No. 515 of 2016), brought Part 1 (Preliminary and General) and Part 9 (Director of the Decision Support Service) of the Act, other than sections 3, 4 and 7 in Part 1 and sections 96 and 102 and Chapter 3 in Part 9, into operation on 17 October 2016. These provisions were brought into operation in order to enable the process of recruitment of the Director of the Decision Support Service (DSS) to begin. Ms Áine Flynn was appointed Director of the Decision Support Service on 2 October 2017.
The commencement of Part 8 of the Act, which provides a legislative framework for advance healthcare directives, is a matter for the Minister for Health. The Minister for Health, under the Assisted Decision-Making (Capacity) Act 2015 (Commencement of Certain Provisions) (No. 2) Order 2016 (S.I. No. 517 of 2016), brought some provisions of Part 8 of the Act into operation on 17 October 2016 . The provisions commenced in Part 8 were the definition of “Minister” in section 82; the definitions of “code of practice” and “working group” in section 91(1); and section 91(2). The commenced provisions provide for the establishment by the Minister for Health of a multi-disciplinary group to advise in relation to codes of practice on advance healthcare directives. The multi-disciplinary group has been set up and work is ongoing on the code of practice on advance healthcare directives.
The key preparations are being put in place under the oversight of the Steering Group to allow for further commencement orders for the provisions of the 2015 Act to be made when the DSS is ready to roll out the new decision-making support options. The Director of the DSS is working in a very determined way to get the necessary staff resources, processes, IT system, expert panels, codes of practice and regulations in place in order that the DSS can be up and running as quickly as possible. There are many complex strands to this work, including involvement of multiple organisations.
Every effort is underway to ensure that the DSS has all necessary capacity to open for business as soon as possible. While the DSS has been working towards being operational and ready for the commencement of the main provisions of the Act in early 2020, the situation will be kept under review as the preparatory work on implementation moves forward.
In April 2018, the MHC engaged the consultancy firm BearingPoint to support the development of a detailed, costed plan to establish a fully operational Decision Support Service. The contract also includes ongoing project management support for the design and establishment of the organisation, business processes, IT systems and risk management framework.
The MHC has in recent weeks received sanction for the recruitment of a number of staff for the DSS and also a number of staff to provide shared services for the MHC and DSS. The MHC proposes to recruit these staff on a phased basis between now and 1 January 2020.
The National Disability Authority is currently finalising its work on the suite of draft codes of practice in relation to non-healthcare matters which are required to be prepared under section 103 of the Assisted Decision-Making (Capacity) Act 2015.
In June 2018, my Department recruited an external legal expert to assist in the preparation of draft regulations in relation to decision-making assistance agreements, co-decision-making agreements, certain matters relating to decision-making representatives, and enduring powers of attorney. These regulation-making powers are provided for in sections 10(4), 31, 45(3), 45(4), 46(3) and 79 of the Assisted Decision-Making (Capacity) Act 2015. Work on the draft regulations is ongoing.
The 2019 Budget provides for an allocation of €3 million in the Justice and Equality Vote for the establishment of the Decision Support Service.
The commencement of Part 8 of the Act, which provides for a legislative framework for advance healthcare directives, is a matter for the Minister for Health.