The Assisted Decision Making (ADM) (Capacity) Act 2015 was signed into law on 30 December 2015 but has not yet been fully commenced.
As the Deputy will be aware, the High Court has jurisdiction in Wards of Court matters. Management of the courts is the responsibility of the Courts Service which is independent in exercising its functions under the Courts Service Act 1998.
The ADM (Capacity) Act 2015 provides a modern statutory framework to support decision-making by adults with capacity difficulties. It provides for the establishment of new administrative processes and support measures, including the setting up of the Decision Support Service (DSS) within the Mental Health Commission (a body under the Department of Health).
Some provisions of the Act were commenced in October 2016 and progress has been made on preparing for the establishment of the DSS and commencement of the remainder of the Act.
A high-level Steering Group comprising senior officials from the Department of Justice and Equality, the Department of Health, the Mental Health Commission and the Courts Service, together with the Director of the DSS, is overseeing the establishment and commissioning of the DSS and this work is ongoing.
The Director of the DSS is working towards being operational and ready for the commencement of the main provisions of the Act. This lead-in timeframe ensures that the necessary staff resources, processes, IT system, expert panels, codes of practice and regulations will be in place so that the Service will have the capacity to be up and running effectively. There are many complex strands to this work, including involvement of multiple organisations, and the situation is being kept under ongoing review as the preparatory work on implementation moves forward.
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.
My Department will continue to work closely with the Mental Health Commission and the Director of the DSS to deliver the full implementation of the Act.
When the Act is fully commenced, the law will be changed from the current “all or nothing” status approach to a flexible functional definition, whereby capacity is assessed only in relation to the matter in question and only at the time in question.
The Act provides for a functional definition of capacity which takes an issue-specific and time specific approach, focusing on the particular time when a decision has to be made and on the particular matter to which the decision relates. This allows for situations where the loss of capacity is temporary or partial and where there may be fluctuations in capacity.
Under the Act, the current adult wards of court system will be phased out and replaced by a less intrusive system which offers a continuum of options to support people in maximising their decision-making capability. Part 6 of the 2015 Act provides for the phased transition from adult wardship to this new support framework. It provides for the review by the wardship court of the capacity of all current adult wards within three years of the commencement of that Part of the Act. Following a review of his or her capacity, the ward will be discharged from wardship and depending on the outcome of the review the wardship court may:
- Declare that the ward does not lack capacity and immediately discharge the ward from wardship and order that the property of the former ward be returned to him/her.
- Declare that the ward lacks capacity unless a suitable person is made available as co-decision maker to make one or more decisions. Once a co-decision making agreement is registered the court shall immediately discharge the ward from wardship and order that the property of the former ward be returned to him/her. If there is no suitable person to act as co-decision maker or the co-decision making agreement has not been properly registered within a period set down by the court, then the court shall make orders as appropriate under Part 5 to appoint a decision making representative and order that the property of the former ward be returned to him/her once a decision making representative has been appointed.
- Declare that the ward lacks capacity even if a suitable person is made available as co-decision maker to make one or more decisions. The court shall make orders as appropriate under Part 5 to appoint a decision making representative and order that the property of the former ward be returned to him/her once a decision making representative has been appointed.