By David Mullins

The Assisted Decision-Making (Capacity) Act 2015 was finally commenced into law last year. It effectively ended what is known as the ‘wardship system’ under which the courts were mandated to make decisions for persons with diminished capacity. The new system puts in other supports for people with diminished capacity but is it possibly open to abuse? Third parties must still make decisions for the person with diminished capacity and the decisions might not always be for the best. Could the system be abused if we ever introduce euthanasia?

The old system was routinely criticised from a human rights perspective not least because the Courts often made decisions based on the ‘best interests’ of ‘the ward’ with little or no consultation with the person involved.

The 2015 Act sought to rectify this by introducing an updated statutory framework of supported decision-making for adults. The Act also contained provisions specifying a number of safeguards that were to be put in place relating to the protection of vulnerable people.

One of these provisions relates to the establishment of an organisation called the Decision Support Service (DSS).

It is the role of the DSS to support the complex decision-making needs of people with capacity difficulties. The DSS is also mandated to investigates complaints about appointed decision supporters and active decision support arrangements.

From the time it became operational however, the DSS says that it has been dealing with a number of what it terms ‘recurring complaints.’

These include:

•             a decision supporter is making decisions on behalf of the relevant person that are not included in the decision support arrangement (which can include Advanced Healthcare Directives and Enduring Power of Attorney.)

•             a decision supporter is acting at a higher level than appointed, for example a decision-making assistant acting as a decision-making representative.

•             decision supporters appointed to act jointly are not communicating sufficiently with each other and decisions are being made by one decision supporter.

Decision supporters is the term applied to any person who is given the legal authority to support someone with capacity challenges to make certain decisions.

They must be appointed to their role in a legally recognised arrangement called a decision support arrangement. The type of support they can provide depends on the type of arrangement in place, including those dealing with Advanced Healthcare Directives (AHD).

AHD’s are legally recognised agreements that allow a person to plan ahead for their healthcare and treatment decisions in the event that they become incapacitated or unable to make such these at a future point in time.

The DSS have not provided a breakdown of the complaints by agreement arrangement, but the nature of the complaints to date are strongly suggestive that existing ‘safeguard’ agreements to protect vulnerable people during end-of-life care are already being breached on a recurring basis.

In the context of the recent assisted-suicide debate we can take this as an insight into how even ‘robust’ legislative safeguarding measures to protect vulnerable adults fall short of achieving those goals in the real world.

Rather than run this risk, it is obviously far better to simply maintain the existing outright prohibition on assisted suicide.

David Mullins is a Catholic Bioethics commentator who received his graduate and post-graduate theological education at St. Patricks’ Pontifical University, Maynooth.