Assisted Decision-Making (Capacity) Act 2015 and CH-3 

The Assisted Decision-Making (Capacity) Act 2015 in Ireland is about supporting decision making, and maximising a person's decisions in respect of their health, welfare, property and affairs.

Key Features of the Act:

  • To whom does it relate?
  • How can decision making be supported, and the legal framework around who can assist, make decisions and/or represent an individual who lacks capacity?
  • Placing a legal requirement on service providers to fully support the decision-making process.
  • Providing a process for advanced health care directives – how and who can make them, what the requirements of service providers to comply are, and under what circumstances can decisions be taken that are not in line with the directive.
  • Abolishing the Ward of Court system and repealing the Lunacy regulations governing them.
  • Establishing a Decision Support Service which will raise awareness and manage and/or investigate complaint processes.
How Does the CH-3 : Holding Skills for Essential Care and Treatment Programme Help Service Providers Comply With the Act?

Relevant elements:
  • Explains how a person’s capacity is defined and what ‘lack of capacity’ means in respect of decision making (section 3 (1-7)).
  • Helps service providers determine whether to make an intervention with a ‘relevant person’ and gives some guiding principles on the process leading to the intervention (section 8(1-10))?
  • Assists in identifying and appointing an assistant / co-decision maker / representative, and defining the responsibilities and limitations of those roles.
  • Describes under what circumstances an advanced health care directive may be made and how health care professionals should comply with and/or can disregard the directive.
  • Details what can and should be included in a health care directive and who has the authority to make such a directive.
Providing a Framework for Clinical Decisions

The CH-3 programme provides a framework that allows for clinical decisions to be reached and implemented both within the context of the Act and wider duty of care and best interest responsibilities.
Section 8 of the Act outlines circumstances under which an intervention may be provided when action is taken as a result of necessity to prevent serious harm provided the course of action is 1) reasonable in the circumstances and 2) in the patient’s best interests and represents less harm to the patient than would have occurred had no action been taken. Acts of necessity "may become a balance between continuing treatment, which is forcibly opposed by the patient and deciding not to continue with it  a clinical decision". The CH-3 programme guides clinical staff through a risk assessment process that aids in the decision to continue with an intervention or not and then provides staff with the skills to implement the intervention.

Different levels of consent

The Act stipulates that consent should be sought where possible, either directly with the service user or through an appointed assistant and/or representative. The principle of gaining informed consent is a fundamental part of clinical practice that ensures practitioners act in a manner considered lawful. Depending upon the type of clinical care and treatment, different levels of consent will be required:
  1. Informal consent where a patient co-operates fully with instructions based on an explanation of the procedure and the need to conduct it (e.g. routine examinations and minor treatment).
  2. Formal consent where a patient needs to provide written consent (signature) agreeing to the treatment (e.g. major or irreversible treatment, sedation or general anaesthesia).
With regard to clinical holding the same issues around consent apply. Where patients are going to be held and the team have planned this, consent should be sought. If clinical holding is used as an emergency response to an unforeseen incident during treatment, this should be documented in the patient’s clinical notes and then consent sought for any future treatments. 

Defining capacity and consent

In a legal context the term ‘capacity’ is used to refer to a person’s ability to make a decision with legal consequences and, as such, in clinical practice the pivotal importance of decision making relates to its place as an essential ingredient for valid consent. The three ingredients to valid consent are:
  1. Consent is given voluntarily  full, free and unfettered.
  2. Consent is given by a person with legal capacity to consent.
  3. Consent is informed or, in other words, the doctor has discharged their duty to provide all information relevant to the decision.
In principle, a patient should receive treatment only after consenting to it. Consent is rooted in the Irish Constitution's guarantee of bodily integrity. To be legally valid, consent should be made by a competent patient without coercion and upon relevant information about the treatment's side effects and alternatives.

Find out how our CH-3 training can help you meet the needs of the Assisted Decision-Making (Capacity) Act 2015.

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