Ciara Dowd BL

The deadline for the commencement of the Assisted Decision-Making (Capacity) Act 2015 has been set for this summer. However, it is due some significant amendments.

Late last year, the Department of Children, Equality, Disability, Integration and Youth published the draft General Scheme and Heads of Bill for the Assisted Decision-Making (Capacity) (Amendment) Bill 2021. The Joint Committee on Children, Equality, Disability, Integration & Youth conducted a consultation on Heads, held two days of hearings, and subsequently published its report on the Assisted Decision-Making (Capacity) (Amendment) Bill in April 2022.

The Assisted Decision-Making (Capacity) (Amendment) Bill 2022 was published on 27 May 2022. Along with the proposed provisions from the lapsed Disability (Miscellaneous Provisions) Bill 2016, the Assisted Decision-Making (Capacity) (Amendment) Bill 2022 makes important amendments to the 2015 Act.

Amendments

There are significant proposed amendments to Part 6 of the 2015 Act, which would provide greater rights to wards in the reviews of their capacity, bringing those provisions into alignment with those governing applications in respect of other types of relevant persons.

In particular, section 40 of Bill would permit the ward’s Committee to apply for a capacity declaration in respect of the ward, and would remove the requirement that said committee and/or the ward would have to obtain consent of the wardship court to apply for a declaration.

The Bill would insert a new section 54A into the 2015 Act which would govern assistance to wards during proceedings, by permitting court friends.

The Bill would also insert a new section 55A, which would govern the review of the capacity declaration by the wardship court. This would require ongoing review of declaration as to capacity in respect of past wards, which was also provided for relevant persons subject to a declaration under section 49.

Similarly, section 78 of the Bill proposes to amend section 139 of the 2015 Act to permit wards to be present in court during a review by the wardship court of the capacity of the ward.

Other notable repeals in the Bill include the repeal of section 57, which referred to “a class of wards”, as well as the deletion of subsections (5) – (8) of section 44, which regulated the use of restraint by decision-making representatives in respect of relevant persons.

In respect of the provisions regarding enduring powers of attorney (EPAs), section 54 of the Bill would insert sections 71A to 71D into the 2015 Act, which contain a two-stage registration and notification process for EPAs. Further, section 59 of the Bill would remove treatment from the remit of EPAs and confine decisions in that regard to advance healthcare directives.

There are important differences in provisions between the Bill and the 2021 General Scheme. For example, Head 23 of the General Scheme proposed to remove the requirement in section 36(10)(b) of the 2015 Act for hearings of applications under Part 5 (Applications to Court in respect of Relevant Persons and Related Matters) to be heard and determined otherwise than in public. However, the 2022 Bill contains no such amendment. In this regard, the Joint Committee recommended in its report on the General Scheme that “should be some judicial discretion given to the judge to have an input into determining whether cases are heard in public or private”.

This is a notable omission. There has been criticism in England and Wales about the lack of transparency in the work of the Court of Protection, as well as in Irish child care proceedings, which contributes to a lack of consistency across courts.

Conclusion

This Bill, while in a large part contains provisions tidying up the 2015 Act and clarifying the role and powers of the Decision Support Service, touches on controversial aspects of the 2015 Act, including the regulation of the use of restraint and public hearings. In this regard, it is likely to go through several iterations in the legislative process, and it will be an important Bill for practitioners to follow.

• Ciara Dowd is a barrister.