The Assisted Decision-Making (Capacity) Act 2015 was enacted in December 2015 and is expected to come into operation in 2016. The Act repeals the Lunacy Act 1871 and Marriage of Lunatics Act 1811. It should be a cause of considerable embarrassment to our Legislators that it is only now getting around to repealing such archaic legislation which has dictated for way too long how we should treat our fellow citizens. The repealed legislation had facilitated a mindset within the legal system and within Society in general and will allow due respect and regard to be had for the rights of persons with disabilities.
The repealed legislation utilised and normalised language such as “idiot” and “lunatic”. The passing of the legislation will remove any legal recognition of such inherently prejudicial and offensive language and will recognise the rights of persons with disabilities to make decisions for themselves rather than having other persons determine what is in their best interest.
The Act gives legal recognition to the rights of all persons, regardless of their disability, and also makes provision for supports to be available to assist people whose decision making capacity is in question. No longer will it be possible to discriminate against an individual on the grounds of a possible lack of decision making ability.
The purposes of the Act, Capacity for Decision Making is defined as the ability to understand, at the time the decision is being made, the nature and consequences of the decision in the contexts of the available choices. This has far reaching beneficial implications for those persons whose capacity to make decisions changes from day to day due to various medical conditions and the Act sets out a functional test for the assessment of a persons capacity.
More importantly it sets out that a person should not be said to lack capacity merely because they can only retain relevant information for a short period of time or they may lack capacity for a particular decision at one time but may no longer lack capacity to make that decision.
Such changes are welcome and we understand that the Minister for Justice and Equality will, in consultation with the Minister for Health, review the functioning of the Act before 2021.