A New Understanding of Living Wills, Decision-Making & Capacity

By September 27, 2016 No Comments

The understanding of ‘capacity’ to make decisions has been radically redefined by the Assisted Decision Making (Capacity) Act 2015. Capacity under the new Act is based on the person’s ability to understand the nature of a particular decision in the relevant context. This means that a person can be considered to have capacity to make some decisions, even if they do not have capacity to make bigger decisions.

The Act deals primarily with health and social decisions.  It does not apply to consenting to marriage, sexual relations, wills and other areas.

The Act sets out a framework for the legal recognition of Advance Healthcare Directives, more commonly known as Living Wills. This system will recognise people’s right to make decisions about their own healthcare and their right to have their wishes respected, even if they lose the capacity to make decisions at a later stage. Such a system has been in place since 2005 in England and Wales.


Is this Act relevant to me?

This Act is relevant to everyone, as our capacity to make decisions may be  affected at any time by illness (whether short-term or long-term), injury or indeed old age. With the commencement of this 2015 Act, you will be able to set out your wishes in an Advance Healthcare Directive and consent to or refuse treatment in advance for any reason. You will also be able to appoint a ‘Healthcare Representative’, such as a spouse, to ensure your wishes are properly interpreted and fulfilled.

This Act is also particularly relevant to people with intellectual disabilities or acquired head injuries. Such a person can appoint a ‘decision-making assistant’, to advise them and ensure decisions are implemented, or a ‘co-decision maker’ to make decisions jointly with them. Equally the Circuit Court can appoint a ‘decision-making representative’ to make decisions on behalf of that person.


Are there any issues with the Act?

  • Legislation is rarely perfect and certainly there are some issues with this new Act. Some of these will be relevant to everyone, while some will only affects certain groups of people.First of all, there has been no system put in place for the registration of Advance Healthcare Directives. As a result, there is a danger that these legally binding documents may be accidentally overlooked in an emergency situation. At Hughes Murphy, we can talk to you about ways to try and ensure that this does not happen.   However, until a central registration system is in place the issue will not be easily resolved.

  • Secondly, the Act itself discriminates illegally on the basis of mental health. This interesting article by Dr. Fiona Morrissey outlines the international human rights principles which are being violated by the exclusion of psychiatric treatment from Advance Healthcare Directives.

  • Finally, the aims of the Act are undermined by certain provisions in the Act itself. Where a person enters into a co-decision making agreement, but later decides they don’t want the agreement to continue, the court has no obligation to end the agreement.


Furthermore, the court’s ability to appoint a ‘decision-making representative’ is problematic. In these circumstances, although the court is obliged to have regard to the Relevant Person’s wishes and existing relationships, ultimately the representative appointed may be a stranger to the Relevant Person! There should be a stronger duty on the court to explore all other avenues before appointing a stranger to make decisions for a Relevant Person.


Read More:

The Assisted Decision Making (Capacity) Act 2015

Cork Online Law Review Article by Kevin Healy

Human Rights in Ireland – Article by Dr. Fiona Morrissey


Hughes Murphy Solicitors in Dublin offers expert legal advice on Elderly Care and Living Wills in Ireland. To learn more about your rights or to receive advice on making a Living   Will or Elderly Care, call us on 1800 910 912 or submit our Contact Form to receive a  call-back.