Assisted Decision-Making (Capacity) Act 2015

PART 1 Preliminary and General

1.. Short title and commencement

1. (1) This Act may be cited as the Assisted Decision-Making (Capacity) Act 2015.

(2) Subject to subsection (3), this Act shall come into operation on such day or days as the Minister, after consultation with the Minister for Health, may appoint by order or orders either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and different provisions.

(3) Part 8 and the other provisions of this Act in so far as they relate to an advance healthcare directive or designated healthcare representative, or both, shall come into operation on such day or days as the Minister for Health, after consultation with the Minister, may appoint by order or orders either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and different provisions.

2. Interpretation — general

2. (1) In this Act—

"act" includes a decision (howsoever described), an omission and a course of conduct;

"Act of 1965" means the Succession Act 1965;

"Act of 1995" means the Civil Legal Aid Act 1995;

"Act of 1996" means the Powers of Attorney Act 1996;

"Act of 2001" means the Mental Health Act 2001;

"Act of 2014" means the Companies Act 2014;

"advance healthcare directive" shall be construed in accordance with section 82;

"approved nursing home" has the meaning assigned to it by section 3 of the Nursing Homes Support Scheme Act 2009;

"attorney" has the meaning assigned to it by section 59(1);

"attorney under the Act of 1996" means a person appointed under an enduring power under the Act of 1996;

"capacity" means decision-making capacity and shall be construed in accordance with section 3;

"child" includes a step-child;

"co-decision-maker" has the meaning assigned to it by section 16;

"co-decision-making agreement" has the meaning assigned to it by section 16;

"co-decision-maker appointer" has the meaning assigned to it by section 16;

"cohabitant" means cohabitant within the meaning of section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010;

"court" means Circuit Court;

"court friend", in relation to a relevant person, means a person appointed by the Director pursuant to section 100(1) to be a court friend for the relevant person;

"customary occasion" means—

(a) the occasion or anniversary of a birth, marriage or civil partnership, or

(b) any other occasion on which gifts are customarily made within families or among friends or associates;

"debt settlement arrangement" has the meaning assigned to it by section 2 of the Personal Insolvency Act 2012;

"decision" includes a class of decisions;

"decision-making assistant" has the meaning assigned to it by section 9;

"decision-making assistance agreement" has the meaning assigned to it by section 9;

"decision-making assistant appointer" has the meaning assigned to it by section 9;

"decision-making order" means an order under section 38(2)(a) as the order is in force from time to time;

"decision-making representative", in relation to a relevant person, means a person appointed pursuant to a decision-making representation order to make one or more than one decision specified in the order on behalf of the relevant person;

"decision-making representation order" means an order under section 38(2)(b) as the order is in force from time to time;

"designated centre" has the meaning it has in section 2 of the Health Act 2007;

"designated healthcare representative" has the meaning assigned to it by section 82;

"Director" has the meaning given to it in section 94;

"enduring power of attorney" has the meaning assigned to it by section 59(2);

"enduring power under the Act of 1996" means an enduring power referred to in section 4 of the Act of 1996 which was created in accordance with the provisions of that Act;

"general visitor" means a person appointed to be a general visitor by the Director pursuant to section 99(1);

"guiding principles" means the principles set out in section 8(2) to (10);

"healthcare professional" means a member of any health or social care profession whether or not the profession is a designated profession within the meaning of section 3 of the Health and Social Care Professionals Act 2005;

"intervener", in relation to an intervention in respect of a relevant person, means the person referred to in paragraph (a), (b), (c), (d) or (e) of the definition of "intervention" making the intervention;

"intervention", in relation to a relevant person, means an action taken under this Act, orders made under this Act or directions given under this Act in respect of the relevant person by—

(a) the court or High Court,

(b) a decision-making assistant, co-decision-maker, decision-making representative, attorney or designated healthcare representative,

(c) the Director,

(d) a special visitor or general visitor, or

(e) a healthcare professional;

"legal practitioner" means a person who is a practising barrister or practising solicitor;

"matter concerned", in relation to a relevant person, means—

(a) in the case of a relevant person who falls within paragraph (a) of the definition of "relevant person", the matter or matters in respect of which the person’s capacity is in question or may shortly be in question, and

(b) in the case of a relevant person who falls within paragraph (b) of the definition of "relevant person", the matter or matters in respect of which the person lacks capacity;

F1["Minister", other than inPart 8, means the Minister for Children, Equality, Disability, Integration and Youth;]

"owner", in relation to a designated centre or mental health facility, includes a person managing a designated centre or mental health facility, or a director (including a shadow director within the meaning of section 222 of the Act of 2014) of, or a shareholder in or an employee or agent of, a company which owns or manages such a centre or facility;

"person who lacks capacity" means a relevant person who falls within paragraph (b) of the definition of "relevant person" but only in relation to the matter or matters by virtue of which he or she falls within that paragraph;

"personal insolvency arrangement" has the meaning assigned to it by section 2 of the Personal Insolvency Act 2012;

"personal welfare", in relation to a relevant person, means one or more of the following matters:

(a) accommodation, including whether or not the relevant person should live in a designated centre ;

(b) participation by the relevant person in employment, education or training;

(c) participation by the relevant person in social activities;

(d) decisions on any social services provided or to be provided to the relevant person;

(e) healthcare;

F2[(ea) participation by the relevant person in healthcare research and social care research except in relation to clinical trials of medicinal products for human use or clinical investigations undertaken to assess the safety or performance of medical devices;]

(f) other matters relating to the relevant person’s well-being;

"property and affairs", in relation to a relevant person, means one or more of the following matters:

(a) the custody, control and management of some or all of the relevant person’s property or property rights;

(b) the sale, exchange, mortgaging, charging, gift or other disposition of the relevant person’s property;

(c) the acquisition of property by the relevant person, or on his or her behalf;

(d) the carrying on, on behalf of the relevant person, of any profession, trade or business which may lawfully be carried on by a person other than the relevant person;

(e) the making of a decision which will have the effect of dissolving a partnership in which the relevant person is a partner;

(f) the carrying out of any contract entered into by the relevant person;

(g) the discharge of the relevant person’s debts, tax and duty liabilities and obligations or other obligations;

(h) the execution or exercise of any of the powers or discretions vested in the relevant person as a tenant for life;

(i) providing, to the extent that the relevant person might have been expected to do so, for the needs of a decision-making assistant, a co-decision-maker, an attorney, a designated healthcare representative or a decision-making representative for the relevant person or F1[for the needs of other persons];

(j) the conduct of proceedings before any court or tribunal, whether in the name of the relevant person or on his or her behalf;

(k) making an application for housing, social welfare or other benefits or otherwise protecting or advancing the interests of the relevant person in relation to those matters;

"registered medical practitioner" has the meaning assigned to it by section 2 of the Medical Practitioners Act 2007;

"registered provider" has the meaning assigned to it by section 2 of the Health Act 2007;

"relevant decision"—

(a) in relation to a decision made, or to be made, by a decision-making assistant appointer with the assistance of a decision-making assistant for that appointer, means a decision on a matter the subject of the decision-making assistance agreement which appointed that decision-making assistant and which falls within the scope of that agreement,

(b) in relation to a decision made, or to be made, jointly by a co-decision-maker appointer and a co-decision-maker for that appointer, means a decision on a matter the subject of the co-decision-making agreement which appointed that co-decision-maker and which falls within the scope of that agreement,

(c) in relation to a decision made, or to be made, by a court on behalf of a relevant person, means a decision on a matter the subject of the decision-making order and which falls within the scope of that order,

(d) in relation to a decision made, or to be made, by a decision-making representative on behalf of a relevant person, means a decision on a matter the subject of the decision-making representation order which appointed that decision-making representative and which falls within the scope of that order,

(e) in relation to a decision made, or to be made, by an attorney on behalf of a relevant person, means a decision on a matter the subject of the enduring power of attorney which appointed that attorney and which falls within the scope of that power, and

(f) in relation to a decision made, or to be made, under an advance healthcare directive (and whether or not there is a designated healthcare representative under the directive), means a decision which falls within the scope of that directive;

"relevant information", in relation to a relevant person, means personal records relating to the relevant person or other information that the relevant person is entitled to and that is or are required in relation to a relevant decision;

"relevant person" means—

(a) a person whose capacity is in question or may shortly be in question in respect of one or more than one matter,

(b) a person who lacks capacity in respect of one or more than one matter, or

(c) a person who falls within paragraphs (a) and (b) at the same time but in respect of different matters,

as the case requires;

"relevant powers" has the meaning assigned to it by section 82;

F3["safety or barring order" means a safety order or barring order made under theDomestic Violence Act 1996or under the Domestic Violence Act 2018;]

"special visitor" means a person appointed to be a special visitor by the Director pursuant to section 99(1);

"suitable"—

(a) in relation to the appointment of a co-decision-maker for a relevant person, shall be construed in accordance with section 17(2), and

(b) in relation to the appointment of a decision-making representative for a relevant person, shall be construed in accordance with section 38(5);

F2["treatment", in relation to a person, means an intervention that is or may be done for a therapeutic, preventative, diagnostic, palliative or other purpose related to the physical or mental health of the person, and includes life sustaining treatment;]

"wardship court" has the meaning assigned to it by section 53.

(2) For the purposes of this Act, persons (howsoever described in this Act) shall not be considered to have ceased cohabiting by reason only of—

(a) one or both residing in or entering a designated centre or mental health facility, or

(b) one or both residing in or entering an institution (of whatever kind) for purposes relating to—

(i) a physical or mental condition of the person concerned, or

(ii) the imprisonment, or the taking into lawful custody, of the person concerned.

3. Person’s capacity to be construed functionally

3. (1) Subject to subsections (2) to (6), for the purposes of this Act, a person’s capacity shall be assessed on the basis of his or her ability to understand, at the time that a decision is to be made, the nature and consequences of the decision to be made by him or her in the context of the available choices at that time.

(2) A person lacks the capacity to make a decision if he or she is unable—

(a) to understand the information relevant to the decision,

(b) to retain that information long enough to make a voluntary choice,

(c) to use or weigh that information as part of the process of making the decision, or

(d) to communicate his or her decision (whether by talking, writing, using sign language, assistive technology, or any other means) or, if the implementation of the decision requires the act of a third party, to communicate by any means with that third party.

(3) A person is not to be regarded as unable to understand the information relevant to a decision if he or she is able to understand an explanation of it given to him or her in a way that is appropriate to his or her circumstances (whether using clear language, visual aids or any other means).

(4) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him or her from being regarded as having the capacity to make the decision.

(5) The fact that a person lacks capacity in respect of a decision on a particular matter at a particular time does not prevent him or her from being regarded as having capacity to make decisions on the same matter at another time.

(6) The fact that a person lacks capacity in respect of a decision on a particular matter does not prevent him or her from being regarded as having capacity to make decisions on other matters.

(7) For the purposes of this section, information relevant to a decision shall be construed as including information about the reasonably foreseeable consequences of—

(a) each of the available choices at the time the decision is made, or

(b) failing to make the decision.

4. Circuit Court to have exclusive jurisdiction under this Act except for certain matters reserved for High Court, etc.

4. (1) Subject to subsection (3), F6[sections 37] and 89(2), Parts 6, 10 and 11, the Circuit Court shall have exclusive jurisdiction under this Act and the performance of the functions of that court conferred by this section shall be within the jurisdiction of the circuit of the Circuit Court and such jurisdiction shall be exercised by the circuit of the Circuit Court F6[in which the following persons are residing or carrying on business at the time the application or appeal concerned is made, or have resided at any time during the period of 3 years immediately prior to the making of the application or the lodging of the appeal concerned:]

F6[(a) the relevant person (including a ward) the subject of an application under this Act;

(b) in the case of proceedings undersection 15, the decision-making assistant appointer, whose decision-making assistant or decision-making assistance agreement is the subject of an application or appeal under that section;

(c) in the case of proceedings underPart 4, the co-decision-maker appointer, whose co-decision-maker or co-decision-making agreement is the subject of an application or appeal under that Part;

(d) in the case of proceedings undersection 46or47, the relevant person, whose decision-making representative is the subject of an application or appeal under the section concerned;

(e) in the case of proceedings underPart 7—

(i) the donor, whose attorney, enduring power of attorney or instrument creating an enduring power of attorney, or

(ii) the donor under the Act of 1996, whose attorney under the Act of 1996, enduring power under the Act of 1996 or instrument creating an enduring power under the Act of 1996,

is the subject of an application or appeal under that Part;

(f) in the case of proceedings undersection 88or89, the directive-maker, whose designated healthcare representative is the subject of an application under the section concerned;

(g) in the case of proceedings undersection 125or127, the adult the subject of the measure that is the subject of an application under the section concerned.]

(2) An application to the Circuit Court under this Act may be made—

(a) in such office of, or attached to, the Circuit Court within the circuit concerned,

(b) in such combined court office (within the meaning of section 14 of the Courts and Court Officers Act 2009) within the circuit concerned, or

(c) in such office of the Courts Service, within the circuit concerned, designated by the Courts Service for the purpose of this Act,

as may be prescribed by rules of court.

(3) Notwithstanding any other provision of this Act—

(a) any decision regarding the donation of an organ from a living donor shall, where the donor is a person who lacks capacity, be determined by the High Court, and

(b) where an application in connection with the withdrawal of life-sustaining treatment from a person who lacks capacity comes before the courts for adjudication, that application shall be heard by the High Court.

(4) Nothing in this Act shall be construed as authorising any person to give consent for a non-therapeutic sterilisation procedure to be carried out on a person who lacks capacity.

F7[(5) Nothing in this Act shall affect the inherent jurisdiction of the High Court to make orders for the care, treatment or detention of persons who lack capacity.]

4A. F8[Regulations