Information on the Assisted Decision-Making (Capacity) Act

Rights-based approach to decision-making

The Assisted Decision-Making (Capacity) Act (2015) comes into effect on 26 April 2023.

The Act reforms the law relating to persons who require or may require assistance in exercising their decision-making capacity. People who may need supports to make decisions include some people with an intellectual disability, mental health difficulty, or an acquired brain injury, or some people with age-related conditions that affect capacity.

The Act provides that everyone is presumed to be able to decide for themselves, unless the opposite is shown. It sets out ways to support people who lack capacity to make decisions. The Act moves away from a ‘best interests’ approach for people who need support with decision-making. It is a move to a rights-based approach to decision-making, with respect for the will and preferences of the person.

Health and social care workers will be expected to take all practical steps to help a person make a decision for themselves.

Key details of the Act

A person’s capacity to make a specific decision is their ability to:

• Understand information and facts relevant to the decision
• Retain that information long enough to make a voluntary choice
• Use or weigh up that information as part of the process of making the decision
• Communicate the decision by any means, including by assistive technology.

The Act puts the person, and their will and preferences, at the centre of their healthcare treatment, even when they may lack capacity to consent to treatment. It provides for the person’s right of autonomy and self-determination to be respected. If a person is found to lack decision-making capacity in one matter, this will not necessarily mean that the person also lacks capacity in another matter. The Act recognises that decision-making capacity:

• can fluctuate
• is issue-specific
• is time-specific.

There are a number of reforms within the Act. The Act:

• Introduces new guiding principles about interacting with a person who has decision-making capacity challenges
• Sets a tiered system of decision support arrangements for people who may require support-making decisions
• Establishes the Decision Support Service (DSS)
• Abolishes the current wardship system for adults, and requires all adult wards of court to be discharged from wardship within three years of commencement of the Act
• Provides a human rights-compliant legal framework for decision-making, where a person lacks capacity to make a decision(s), and for advance healthcare directives
• Moves to a functional approach to the assessment of capacity, moving away from “all or nothing” status approach
• Improves oversight of the Enduring Powers of Attorney process.

The Act also provides for legally recognised decision-makers to support a person to maximise their decision-making powers. The Director of the DSS will have the power to investigate complaints around the actions of decision supporters appointed under the Act, in relation to their role as a decision-supporter

What the Act means for healthcare workers

It should be noted that the guiding principles of the Act require healthcare workers to:

• Presume every person has the capacity to make decisions about their life
• Support people as much as possible to make their own decisions
• Not assume a person lacks capacity just because they are making, have made or are likely to make an unwise decision
• Take action only where it is really necessary
• Take the least restrictive action on a person’s rights and freedoms
• Consider how urgent the action is
• Give effect to the person’s will and preferences
• Consider the views of other people
• Use information appropriately.

Healthcare workers will be required to engage with a person’s legally appointed decision supporter under the Act.

All practicable steps to support decision-making

If a person needs to make a decision in relation to their care or treatment, they must be supported to make that decision, such as through the provision of accessible information. This will mean that health and social care consultations may take more time.

Functional assessment of decision-making capacity

The functional assessment of capacity will now have a statutory basis and should be used in place of status-based capacity assessments for the assessment of decision-making capacity.

Healthcare professionals may be required to undertake assessments of capacity under some sections of the Act; for example, to assess whether a person can make decisions with the support of a co-decision maker or has the capacity to make an Enduring Power of Attorney.

Advance Healthcare Directives

The purpose of an Advance Healthcare Directive is to provide healthcare professionals with important information about a person’s refusal of healthcare treatment and to enable a person to be treated according to their own will and preferences, even when they no longer have the capacity to make decisions.