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Assisted Decision Making Assisted Decision Making

Assisted Decision Making - PowerPoint Presentation

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Uploaded On 2015-09-19

Assisted Decision Making - PPT Presentation

Sarah Lennon Inclusion Ireland Overview The current situation in Ireland Context for Change Typical Case Studies The Future Currently in Ireland Status Approach to Capacity Decision that someone lacks capacity ID: 133766

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Slide1

Assisted Decision Making

Sarah Lennon

Inclusion IrelandSlide2

Overview

The current situation in Ireland

Context for Change

Typical Case Studies

The FutureSlide3

Currently in Ireland

Status Approach to Capacity

Decision that someone ‘lacks capacity’

Simply possessing or not possessing particular characteristics

Typically ‘all or nothing’

No regard to actual capabilities to make particular decisionsSlide4

Ward of Court

Irish system – Ward of Court

1871 Lunacy Regulation Act

Person who is made a Ward of Court is deemed ‘lunatic’ ‘idiot’ ‘unsound mind’

Typically as a result of finances

Protection

Broad restrictionsSlide5
Slide6

Ward of Court

Medical Model

When considering whether or not a person should be taken into Wardship, the Court must be satisfied that the person is, on the basis of the medical evidence available, mentally incapacitated and incapable of managing his or her affairs –

Court Service GuideSlide7

Ward of Court

Financial affairs – including bank accounts, taxation, bills, property

Consent to medical treatment (approval)

Wills (only with permission)

Marriage (not permitted)

Travel abroad (only with permission)

Legal proceedings (with permission)

Wards can be sued or

prosecutredSlide8

Change

Change began in 2003 with Law Reform Commission consultation on ‘Law & The Elderly’

Relevance to other persons

2005, Consultation Paper on ‘Vulnerable Adults & the Law’

2006, Report on ‘Vulnerable Adults & the Law’ Slide9

Change

2006-2007, UN Convention on the Rights of Persons with Disabilities (UNCRPD)

Mental Capacity and Guardianship Bill 2007

(

Seanad

)

Scheme of Mental Capacity Bill 2008

Assisted Decision-Making (Capacity) Bill 2013Slide10

Functional Approach

Issue Specific

Time Specific

Based on ability to understand the nature and consequences of a decision to be made in the context of the available choices at the time the decision is madeSlide11

Defining Capacity

Australian State of Victoria, capacity is defined in terms of lack of capacity – Substitute Approach

In the Canadian province of Saskatchewan, capacity is defined as the ability to understand information relevant to making a decision and to appreciate the reasonably foreseeable consequences of making or not making a decision. Slide12

UNCRPD

Article 12

Equal Recognition

Legal Capacity on an equal basis with others in all aspects of lifeSlide13

Legal Vs Mental Capacity

Mental capacity is closely aligned with intelligence

Legal capacity is the ability to make decisions and have such decisions respected in all areas of life 

Presumption that everyone has legal capacity Slide14
Slide15

The Assisted Decision Making Bill

For people over 18

It is still a Bill –may be changes

Doesn’t apply to voting, marriage, membership of a jury, mental health treatment and consent to sexual relationships

Many parts of the law are still unclear and will need a Code of Practice to explain themSlide16

Definition of Capacity

Can You?

Understand the relevant information (given in a way that is accessible to you)

Remember the information

Use the information towards making a decision

Communicate your decision (not only verbally)

Applies to EVERYONE – not just people with a disability or diagnosisSlide17

Principles

Presumption of capacity (not the other way around)

Information used must be accessible to that person

‘unwise’ decision does not equal lack of capacity

Any Intervention must be necessary and least restrictive of your freedom, rights and dignity

Individual must participate in intervention

Will and preferences (as far as practicable)

Talk to others who know the person wellSlide18

Exclusions

Marriage / civil partnership / separation/dissolution and divorce

Adoption or guardianship of a child

sexual relations

voting at an election or at a referendum

serving as a member of a jury.Slide19

Office of Public Guardian

Raise awareness about UN Convention & Act

Supervise assistants, co decision-makers, representatives and attorneys

Appoint panels of representatives, court friends, special and general visitors

Keep a register of agreements, read reports

Deal with complaints and start investigations

Give advice to the court making a decision Slide20

How will Decisions be Made?

by the person autonomously

By the person with assistance

Informally by another person

By the person with a co-decision maker

By another person (representative or attorney)

By the High Court for certain decisions

Outside of the Court System

Through the Court SystemSlide21

Assistance

Applies to persons aged over 18

The law says you must think your capacity is ‘in question or shortly may be in question’ for the agreement to be used

Assistance for personal welfare or property and affairs, or bothSlide22

Assistance Agreements

There will be a form to fill in called the ‘agreement’

The ‘appointer’ is the person who chooses the ‘assistant’

There can be more than one assistant but not more than one per decision to be made

If someone else challenges your decision you can show them your agreementSlide23

Function of the Assistant

Advises about the decision

Gets the ‘will & preferences’ of the appointer

Helps to communicate the decision and makes sure the person’s wishes are followed

Can access relevant information needed for the decision

Does NOT make the decisionSlide24

Informal Decision-Making

Allows someone to make an ‘everyday’ decision for someone else who they believe lacks capacity

Must comply with general principles

Only for personal welfare decisions

Paid for expenses from your moneySlide25

Informal Decision-Making

Still liable for criminal or civil negligence

Must not make a decision that goes against assistant, co decision, or representative

Can’t make a decision that only the High Court can makeSlide26

Informal Decision-Making

Still liable for criminal or civil negligence

Must not make a decision that goes against assistant, co decision, or representative

Can’t make a decision that only the High Court can makeSlide27

Co-Decision Making

Over 18 and capacity in question or more be shortly

May be appointed by the person themselves or by court

Person cannot have a co-decision maker appointed against their will

The individual and co-decision maker make the decision togetherSlide28

Role of the Co-Decision Maker

Make any decision (specified) together with the individual

Advise the individual

Ascertain the ‘will and preferences’ of the person

Assist the person to communicate their decision

Access relevant personal information Slide29

Role of the Co-Decision Maker

Must prepare an annual report for the public guardian

Can receive expensesSlide30

Co-Decision Making

A co-decision maker must comply with the decision made by the individual appointer unless

It is not ‘reasonable’

It is harmful to themselves or othersSlide31

Who can be a co-decision maker?

a relative or friend of the who has had such personal contact, over such period of time that a relationship of trust exists between themSlide32

Who cannot be a Co-decision Maker?

Owners, employees or agents of a nursing home, a mental health facility, or a residential facility for persons with disabilities, in which the relevant person residesSlide33

Powers of Attorney

You make a ‘power of attorney’ once you are over 18. It is an agreement that someone you choose will make

decision(s

) for you once you consider that your capacity is or shortly may be in question.

This replaces the Enduring Powers of Attorney Act 1996. If you appointed an attorney under the old law, it still applies. Otherwise, this new law applies.Slide34

Decision-Making Representatives

Substitute Decision making – close to a guardianship model

Appointed by Court, on foot of an order or otherwise

Court decides that a co-decision maker is not appropriate or not availableSlide35

Who can be a Decision – Making Representative?

Can be more than one person per decision

Suitable and understanding of the responsibility

Over 18 years old

The Public Guardian will maintain a panel of suitable persons willing and able to act as decision-making representativesSlide36

Who cannot be a Decision Making Representative?

Owners, employees or agents of a nursing home, a mental health facility, or a residential facility for persons with disabilities, in which the relevant person residesSlide37

Wards of Court

Everyone who was a ward before the Act will be reviewed within 3 years but can apply to court for review as soon as the Act is passed

Everyone who was a ward will be discharged eventually, and a different order will be made (e.g. co decision-making or representative) but the court will decide when this will happen and will base this on the person’s capacitySlide38

Case Studies

Mike has an intellectual disability, his mother dies without a will and he and his sister Anne inherit equally. Anne wishes to sell the property but there is concern that Mike lacks Capacity to consent.

Today – Mike could be made a Ward of Court

Post Act – Mike could have a co-decision maker or personal representative Slide39

Case Studies

Jack has an acquired brain injury following injury at birth. He receives a large sum of money in damages for his future care.

Today – Court holds money pending application for

wardship

Post Act – Court could appoint a co-decision maker or personal representative and review Slide40

Case Studies

Barry has an intellectual disability. His doctor has prescribed him medicine for high blood pressure. He is confused as to when he is to take the medication and wants some support.

Today – Only Barry can give consent. Often a service provider or family member will ‘manage’ the medication

Post Act – Barry can have an ‘assistant’ of his choosing

to support him Slide41

Thank You

Q&A