Caring for vulnerable individuals often involves navigating complex legal frameworks. For caregivers in Ireland and the UK, understanding the laws surrounding decision-making capacity is crucial to ensuring that those in their care are supported respectfully and legally.
Ireland’s Assisted Decision-Making (Capacity) Act 2015 (ADMCA) and the UK’s Mental Capacity Act 2005 (MCA) are two legislative frameworks that provide guidance on supporting people with diminished decision-making capacity. However, the UK Act has been operational for almost two decades, and its evolving case law offers valuable insights that the Irish framework could learn from.
This comparison aims to help caregivers grasp the key similarities and differences between these laws and their practical implications, offering clarity on how to provide effective care while complying with respective legal systems.
What Are the Acts About?
Both Ireland’s ADMCA (fully enacted in 2023) and the UK’s MCA (enforced since 2007) are rights-based frameworks aimed at prioritising autonomy and supporting decision-making for individuals who may lack full mental capacity. Specifically, they provide legal measures for assessing capacity, appointing decision-making representatives, and ensuring that care decisions uphold the rights and dignity of those affected.
Core Principles Shared by Both Laws
- Presumption of Capacity: Both laws presume that every individual has the capacity to make decisions unless proven otherwise.
- Functional and Specific Capacity Testing: Capacity assessments are decision-specific and consider whether the person can understand and weigh the relevant information at the time the decision is made.
- Support Over Substitution: Both laws emphasise assisting individuals to make their own decisions rather than overriding autonomy unnecessarily.
While the foundational principles are aligned, the two Acts differ in their application and the extent of guidance provided by case law.
What Can We Learn from the UK Experience?
The UK’s MCA has shaped caregiving practices over the years through extensive case law, nuanced discussions on fluctuating capacity, and evolving guidance from the England and Wales Court of Protection (CoP).
Fluctuating Capacity in Practice
The concept of fluctuating capacity—where an individual’s ability to make decisions varies over time or due to external factors—has been a critical area of development. For example, in RB Greenwich v CDM (2018), the Court ruled that certain decisions (e.g., daily treatment decisions) must be made in the moment based on the person’s capacity at that time.
However, cases like Cheshire West & Chester Council v PWK (2019) introduced the idea of taking a longitudinal view for ongoing care decisions. Instead of requiring repeated capacity assessments, a broader declaration of incapacity was made, considering the unpredictability and serious impact of fluctuating capacity.
Practical Applications for Caregivers in the UK
- Caregivers must assess whether a decision is a “one-off” (e.g., selling a house) or an ongoing longitudinal decision (e.g., managing daily finances). This determines how capacity is assessed.
- Advance planning is encouraged where possible, including creating Lasting Powers of Attorney (LPA) or care plans to prepare for situations where capacity may fluctuate.
While these approaches are beginning to shape practice in Ireland, the relatively recent enactment of the ADMCA means Irish caregivers are less likely to have case law guidance on issues like fluctuating capacity.
Unique Features of the Assisted Decision-Making (Capacity) Act 2015 in Ireland
The ADMCA aims to modernise Ireland’s outdated wardship model with tools like Decision Support Agreements and Co-Decision-Making Agreements. Similar to processes in the UK, the Act emphasises supporting individuals to make decisions rather than substituting them entirely.
Key Features Every Irish Caregiver Should Know
- Decision-Making Supports: Three levels of support—Decision-Making Assistants, Co-Decision Makers, and Decision-Making Representatives—are used based on an individual’s needs. This flexibility empowers caregivers to tailor support to the person’s capacity at any given time.
- Advance Healthcare Directives (AHDs): AHDs allow individuals to document their healthcare preferences, ensuring their wishes are followed if they lose decision-making capacity in the future.
- Functional Capacity Approach: Capacity is time and decision-specific, but the ADMCA also allows for anticipatory declarations where applicable.
While promising, practitioners and caregivers have raised concerns that the replacement of Ireland’s Care Representative role with a more complex court-regulated process has added challenges for families navigating these frameworks.
Practical Guidance Under the ADMCA
- Caregivers should work closely with individuals to establish AHDs early, ensuring preferences are recorded clearly.
- Engage with the Decision Support Service (DSS) for templates, training, and dispute resolution.
The ADMCA provides a robust framework, but caregivers must familiarise themselves with its tools to ensure effective application.
Practical Implications for Caregivers
Similarities in Daily Care Across Ireland and the UK
Caregivers in both jurisdictions need to integrate legal principles into their daily routines. This involves respecting autonomy, understanding when and how to assess capacity, and engaging in ongoing care planning.
Key Differences to Be Aware of
- Legislative Maturity: The UK MCA has decades of case law to guide complex situations like fluctuating capacity and longitudinal decision-making. Ireland’s ADMCA is still in its infancy, with less judicial interpretation to lean on.
- Administrative Complexities: Ireland’s ADMCA introduces extensive court oversight for decision-making arrangements, which can create bureaucratic burdens. On the other hand, the UK’s MCA facilitates relatively simpler processes like registering LPAs.
Essential Tips for Caregivers in Ireland
- Understand the Framework
Familiarise yourself with the Act applicable in your jurisdiction. The ADMCA’s Decision Support Agreements are invaluable tools for caregivers.
- Document Preferences Early
Encourage individuals to create Advance Healthcare Directives while they have full capacity. These documents provide clarity for caregivers and ensure that care remains aligned with the individual’s preferences.
- Plan for Fluctuating Capacity
If someone’s capacity is likely to fluctuate, work with medical professionals to document care plans for predictable triggers and establish authority to act during periods of incapacity.
- Engage Legal Support When Needed
For complex cases, particularly those involving asset management or long-term care plans, consult legal professionals for guidance.
- Leverage Resources
Ireland’s DSS offers practical resources, training, and templates to assist caregivers.
Empowering Caregivers with Knowledge and Support
The Assisted Decision-Making (Capacity) Act and the Mental Capacity Act aim to foster dignity and autonomy for vulnerable individuals while providing caregivers with the tools to support them effectively. Although the UK’s MCA benefits from a longer history of application and rich case law guidance, the ADMCA reflects a modern rights-based ethos that is equally promising for Irish caregivers.
If you’re caring for someone who may lack capacity—or helping them plan for the future—it’s crucial to stay informed and seek professional guidance where needed.
At HOMS Assist, we provide personalised legal advice to help you understand your responsibilities and rights under Irish capacity law. From interpreting Advance Healthcare Directives to navigating Decision-Making Agreements, our team is here to support you every step of the way.
Contact us today to discuss your caregiving needs and ensure you’re equipped to provide the best possible care.
