2016: Decision making and legal capacity in dementia
Consent to medical treatment
As a general rule, medical or surgical procedures may not be carried out without the informed consent of the patient. The Assisted Decision-Making (Capacity) Act 2015 provides laws to support decision-making by adults who have difficulty in making decisions without help.
In general, valid consent must be informed consent where the patient has sufficient information to be able to understand the nature of what is proposed and the potential risks and benefits involved. The patient must have the capacity to make the decision and must be free to do so without threat or pressure from others.
If a person carries out medical or surgical procedures without consent, he/she could be charged with the crime of assault - the decision on charges is made by the Director of Public Prosecutions.
He/she could also be sued for the tort (civil wrong) of trespass to the person and possibly for breach of constitutional rights. If the person involved is a medical professional, he/she could also be sued for negligence. The patient may take these actions.
Consent to treatment under the Mental Health Act
Part 4 of the Mental Health Act 2001 defines consent in relation to a patient under the Act as meaning consent obtained freely without threats or inducements where the consultant psychiatrist responsible for the care and treatment of the patient is satisfied that the patient is capable of understanding the nature purpose and likely effects of the proposed treatment and has given the patient adequate information in a form and language that the patient can understand on the nature purpose and likely effects (section 56).
Consent of the patient is not required for treatment when in the opinion of the consultant psychiatrist responsible for their care, the treatment is necessary to safeguard the life of the patient, to restore their health, alleviate their condition, or relieve their suffering and by reason of their mental disorder the patient is incapable of giving such consent. In all other circumstances consent is required. (section 57).
There are further safeguards in relation to certain highly invasive treatments. Psycho-surgery, even with the written consent of the patient, must be authorised by a Tribunal. Electroconvulsive therapy requires either the written consent of the patient or the approval of the consultant psychiatrist responsible for the patient and a second consultant psychiatrist and must be administered in accordance with the rules published by the Mental Health Commission (section 58-59).
Medication for a mental disorder cannot be continued for more than three months unless the patient consents in writing or if the patient is unable or unwilling to consent, with the approval of the consultant psychiatrist responsible and a second consultant psychiatrist. Consent or approval must be obtained every further three months that the medication is continued (section 60).
Consent to clinical trials
Clinical trials in Ireland are governed by the European Communities (Clinical Trials on Medicinal Products for Human Use) Regulations, 2004, SI No 190 of 2004.
The Regulations transposed into Irish law the provisions of Council Directive 2001/20/EC. The regulations supersede the Control of Clinical Trials Acts 1987 – 1990 for clinical trials using medicinal products.
There are safeguards in place governing the participation of incapacitated persons in clinical trials. In addition, the Clinical Trials Regulation (Regulation (EU) No 536/2014), which is due to come into force in 2016, also contains extensive provisions relating to protection of those participating in clinical trials, including incapacitated persons.
Anyone who is a patient with a mental disorder in an approved centre under the Mental Health Act 2001 cannot take part in a clinical trial (section 70).
An Advance Healthcare Directive, sometimes known as a 'Living will', is a statement about the type and extent of medical or surgical treatment you want in the future, on the assumption that you will not be able to make that decision at the relevant time. The Assisted Decision-Making (Capacity) Act 2015 provides laws for Advance Healthcare Directives. The Act was signed into law on 30 December 2015.
In line with this Act’s focus on respecting the will and preferences of the individual, the Act provides for the making of advance healthcare directives (AHD). These will allow an individual to make an advance expression in writing of their preferences concerning medical treatment which can be relied upon in the event that healthcare decisions must be made at a time when that individual lacks capacity, and/or to appoint a healthcare representative to ensure that the terms of the AHD are complied with.
A person may specify in their AHD what treatments they would like to be provided and also what treatments they would like to refuse. “Treatment” in this regard includes all therapeutic, preventative, diagnostic and palliative interventions, or other interventions whose purpose relates to the physical or mental health of the person, and includes life-sustaining treatment (s. 82) (one notable exception is where, at the time when it is proposed to treat the directive-maker, his or her treatment is regulated by Part 4 of the Mental Health Act 2001 – the AHD will not apply to such treatment (s. 85(7)(a)).
While requests for treatment will not be legally binding and will only be taken into account in the decision-making process (s. 84(3)(a)), valid and applicable treatment refusals in an AHD, including the refusal of life-sustaining treatment, will be as effective as they would be if the person making the refusal currently had capacity (s. 86(1)). The power to refuse a treatment in advance is therefore the major advantage of creating an AHD.
Issues surrounding the loss of legal capacity
The Assisted Decision-Making (Capacity) Act 2015 provides a modern statutory framework supporting decision-making by adults who have difficulty in making decisions unaided. It will repeal the Marriage of Lunatics Act 1811 and cause the Lunacy Regulation (Ireland) Act 1871 to cease to have effect. The Act provides for the replacement of the Wards of Court system for adults, which is the existing mechanism for managing the affairs of persons whose capacity is impaired, with a range of legal options on a continuum of intervention levels to support people in maximising their decision-making capability. This legislation is a key step in enabling ratification of the UN Convention on the Rights of Persons with Disabilities.
The Act is intended to address three broad categories of people. These are people with disabilities, particularly intellectual disabilities, older people with degenerative cognitive conditions and people with mental health issues who may have fluctuating capacity. The philosophy of the Act is to safeguard the person’s autonomy to the greatest extent possible, stressing the importance of the person’s ‘will and preferences’.
Proxy decision making
Assisted Decision Making
The Assisted Decision Making Act replaces the existing Ward of Court system for adults.
A range of legal options are set out to support people in maximising their decision-making ability. The Guiding Principles apply to everyone carrying out a function under any of these options.
There are four main decision making options set out in the Act:
- The assisted decision making option is aimed at the person whose decision making is somewhat impaired but who, with the necessary information and explanation, could exercise decision making capacity. The person themselves will appoint their decision making assistant who will be supervised by the newly established Office of the Public Guardian (OPG). (The OPG replaces the Wards of Court Office).
- The co-decision making option relates to people who require a higher degree of support but can still participate in decision-making. It allows a person to appoint a trusted family member or friend as a co-decision-maker under an agreement that will be confirmed by the Circuit Court. Any decision covered by the agreement must be agreed to by both the person with limited capacity and their appointee. They will be supervised by the OPG.
- The third option is the appointment of a decision-making representative when 1 or 2 options are not possible. When the person is not able to make a decision even with support the Circuit Court will appoint a decision-making representative who will be accountable to the Court and under the supervision of the OPG.
- Finally, the Act recognises that there are many informal decisions made daily in relation to a person with limited capacity and where there is no formal decision making agreement drawn up.
Continuing powers of attorney
The Assisted Decision Making Act distinguishes between enduring powers of attorney made pursuant to the Powers of Attorney Act 1996 (“1996 EPAs”) and enduring powers of attorney made pursuant to the 2015 Act (“2015 EPAs”).
A new regime for 2015 EPAs which will be similar to 1996 EPAs in allowing an individual to appoint an attorney to act on his or her behalf in the event he or she no longer has capacity to do so but which will also contain fundamental differences including the execution and registration process containing more safeguards; the personal welfare, property and affairs extending to healthcare (but not to the refusal of life-sustaining treatment); regular reporting and accounting obligations of attorneys to the Director of the Decision Support Service and a complaints procedures to the Director who will have powers of investigation.
The 1996 EPAs remain unchanged other than that complaints may be made to the Director in relation to 1996 EPAs and investigations may follow those complaints or may be instigated at the initiative of the Director.
The Assisted Decision-Making (Capacity) Act 2015 defines an Enduring Power of Attorney as an arrangement whereby a Donor (being the person who may lack capacity in the future) gives a general power to an Attorney (the person providing assistance) to act on their behalf. This may be in respect of all or some of the person’s property and affairs, or to do specified things on the person’s behalf.
An Enduring Power of Attorney created under the Powers of Attorney Act 1996 will still have effect after the Assisted Decision-Making (Capacity) Act 2015 is commenced.
Following commencement of the 2015 Act, however, no new Enduring Power of Attorneys will be created under the 1996 Act. Under the 2015 Act, an Enduring Power of Attorney does not come into force until the person lacks capacity in relation to one or more of the decisions specified in the Enduring Power of Attorney and the instrument creating the Enduring Power of Attorney is registered with the Director of the Decision Support Service.
An Enduring Power of Attorney must be made in writing. Once an Enduring Power of Attorney is signed, the person must give notice of the Enduring Power of Attorney to:
• A spouse or civil partner (if any) of the person
• The cohabitant (if any) of the person
Any children of the person who are at least 18 years’ old
• Any Decision-Making Assistant
• Any Co-Decision-Maker for the person
• Any Decision-Making Representative for the person
• Any Designated Healthcare Representative for the person (see below)
• Any other Attorney appointed
The signing of the Enduring Power of Attorney must be witnessed by two witnesses:
• Each of whom is at least 18 years’ old
• Of which at least one is not an immediate family member of the person or the Attorney, and
• Neither of whom is an employee or agent of the Attorney
If an Attorney believes that the person lacks capacity in respect of one or more decisions specified in the Enduring Power of Attorney, the Attorney must apply to register the instrument with the Director of the Decision Support Service and give the relevant notice.
While an application is pending registration with the Director, an Attorney can take any reasonable actions to maintain the person and prevent any loss of the person’s assets. The Attorney must report any such action to the Director.
Anyone with sufficient interest in the welfare of the person may object to the registration of an Enduring Power of Attorney. The objection must be lodged with the Director within five weeks of notice of the Enduring Power of Attorney being given.
On receipt of an application to register an Enduring Power of Attorney, the Director will make all enquiries necessary before registering the Enduring Power of Attorney, including investigating any objections lodged. Where an Enduring Power of Attorney is refused registration by the Director, the Attorney and the person will be notified of the reasons for the refusal and given an opportunity to respond. An Attorney may appeal any such refusal to the courts within 21 days.
Anyone can be appointed as an Attorney provided they are over 18 years old and able to perform the functions of an Attorney as specified in the Enduring Power of Attorney in question. The Enduring Power of Attorney cannot contain any decision relating to the refusal of life-sustaining treatment, or any item already covered by a pre-existing Advance Healthcare Directive.
Where an Attorney is conferred with a general power as to the person’s property and affairs, the Attorney may not dispose of the property by way of gift unless specifically provided for under the Enduring Power of Attorney.
Where gifts are specifically provided for, they are limited to those made on customary occasions to people (including the Attorney) or charities to whom the person might be expected to make gifts and should be of a reasonable value given the circumstances and means involved. The Attorney is only entitled to be paid for carrying out their functions under the Enduring Power of Attorney if this is specified in the Enduring Power of Attorney.
Under the 2015 Act, an Attorney acting under an Enduring Power of Attorney relating to property and affairs must file a report with the Director within three months of the registration of the Enduring Power of Attorney. This report should include a schedule of the person’s assets and liabilities, and any projected income and expenditure. After that the Attorney must submit updated reports every year.
Capacity In Specific Domains
Marriage and divorce
In Ireland, and many other countries, only adults with the necessary decision making capacity are lawfully able to marry. The validity of a marriage is governed by statutory and common law considerations. The Assisted Decision Making (Capacity) Act 2015, which is part of the process of ratifying the Convention on the Rights of Persons with Disabilities, proposes changes in the legislation governing marriage, in particular the repeal of the Marriage of Lunatics Act 1811 and the discontinuation of wardship, will mean that some cognitively impaired people will be able to marry.
A person lacking mental capacity does not automatically lose the right to vote. There is, however, a definition of legal incapacity to vote which was defined in a court case in 1874 (Stowe v Joliffe) (British Medical Association/the Law Society, 1995). According to the ruling from this case, there is “some quality inherent in a person, which either at common law, or by statute, deprives him of the status of Parliamentary elector”. Although doctors and lawyers rarely become involved in cases to prevent a person lacking mental capacity voting, this definition is still valid today. Common law also applies in relation to mental capacity. In the Oakhampton and Robin’s case (1791) it was declared that a “lunatic” could vote but only during a lucid interval. Although the term is offensive nowadays, the provisions of this case were confirmed in subsequent cases and are still applicable today for people suffering from a mental disorder. If the presiding officer at the polling station considers that a person lacks the capacity to vote, s/he may refuse that person access to vote (Inclusion Ireland, 2010).
The law presumes that everyone has the capacity to contract and the onus is on the person claiming that they were incapable to prove so. If they succeed this incapacity may defeat the contract and make it unenforceable. The courts will accept three categories of incapacity. The first of these is contracts entered into by a minor. Apart from contracts for necessaries and contracts of apprenticeships, education and service the general rule is that the contract will not be binding on the minor. The second category of incapacity is insanity. In order not to be bound the person must show that owing to his mental condition he did not understand what he was doing, that the other party was aware of this incapacity and that the contract was not one for necessaries. The third category of incapacity is intoxication and there is a similar burden of proof on the person seeking to rely on it as in the case of insanity.
One of the criteria for a will to be considered valid is that the person who made it was of sound mind. The Assisted Decision Making (Capacity) Act 2015 defines capacity in relation to decision-making and explicitly sets out that it does not apply to capacity or consent required in relation to making a will. A solicitor cannot aid a person to draw up a will, if s/he is not satisfied that the person fully understands what is involved. It is not possible to draw up a statutory document, i.e. a will drawn up by the Court on behalf of an incapacitated person as can be done in England (Costello, 1998).
People who are charged with a criminal offence and who are suffering from a mental disorder are dealt with under the Criminal Law (Insanity) Act 2006 as amended by the Criminal Law (Insanity) Act 2010.
The question of the mental state of someone in Ireland charged with a crime may arise at two different stages – at the start of the trial and at the decision on guilt. If a person is suffering from a mental disorder, they may be considered unfit to be tried at the start of the trial. In that case, no trial goes ahead. If a trial is held and the person is considered to have actually committed the offence but was insane at the time, it is possible for a verdict of not guilty by reason of insanity to be reached. In murder cases, the concept of diminished responsibility may be used to substitute a verdict of manslaughter.
A mental disorder in Irish law is defined as including mental illness, mental disability, dementia or any disease of the mind but does not include intoxication (drunkenness).
Fit or unfit to be tried
The decision on whether or not a person is fit to be tried is made by a judge. If the person cannot understand the charge or is unable to instruct a legal team, challenge jurors or follow the evidence, then they may be considered unfit to be tried.
This finding (that is that someone is considered unfit to be tried) is not a decision on the alleged criminal activity. If someone is found to be unfit to be tried, then the trial is postponed. The judge then decides what happens next. For example, the person may be committed to a psychiatric hospital or unit if they are considered to be suffering from a mental disorder and are in need of in-patient treatment under the terms of the Mental Health Act, 2001. Alternatively, the person may be sent for out-patient psychiatric care. The person may be committed to a psychiatric hospital or unit for 14 days in order to establish whether or not they should be sent for treatment. The person may appeal against a committal order.
If the judge considers that there is a reasonable doubt that the person committed the alleged crime, the person may be acquitted. The Director of Public Prosecutions may appeal against a decision that a person is unfit to be tried.
Not guilty by reason of insanity
If someone is considered to have actually committed the offence but was insane at the time, the verdict may be not guilty by reason of insanity. According to common law and for the purposes of determining criminal responsibility, “insane” is understood to mean that the person:
- did not know the nature and quality of the act;
- did not know that what he or she was doing was legally wrong; or
- was unable to refrain from committing the act.
This verdict is commonly known as “guilty but insane”. This decision is made by a jury. If this verdict is reached, the judge may order that the person be committed to a psychiatric hospital or unit in broadly the same way as applies in the case of being unfit to be tried.
Diminished responsibility in murder cases
If someone is charged with murder, the verdict of not guilty by reason of insanity is one possible verdict. The Criminal Law (Insanity) Act 2006 provides for the concept of diminished responsibility in murder cases. A conviction for murder in Ireland brings an automatic life sentence. In other crimes, the judge has discretion in relation to sentencing and so can take into account any diminished responsibility which may exist. If someone charged with murder successfully pleads diminished responsibility, then the verdict is manslaughter. The judge can then sentence the person to any length of time in prison.
Mental Health Review Board
The Mental Health (Criminal Law) Review Board's main function is to review the detention of those found not guilty by reason of insanity or unfit to be tried, who have been detained in a designated centre by order of a court. At present, the only designated centre is the Central Mental Hospital. The Review Board also has responsibility for people who have been convicted of offences and who become mentally ill while serving their sentences. The Review Board must have regard to the welfare and safety of the person whose detention it reviews and to the public interest. It may assign a legal representative to the person unless the person proposes to engage one.
The Board is composed of a legal chairperson and a number of other people, at least one of whom must be a consultant psychiatrist. It is obliged to review each detention at least once every 6 months.
Last Updated: Wednesday 08 February 2017