17.7.2013 NAI welcomes publication of Assisted Decision Making (Capacity) Bill 2013

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The NAI welcomes the publication today of the long awaited Assisted Decision Making (Capacity Bill). The Bill has a number of implications for people with neurological conditions where capacity is an issue. It will replace the Wards of Court system with a legal framework to support people in exercising their decision making capacity so that they can better manage their personal, welfare, property and financial affairs.

The NAI welcomes the following features of the legislation:

1. The Bill changes the existing law on capacity from an all or nothing status approach to a functional one whereby decision making is assessed on an issue and time specific basis.

2. The Bill provides a range of supports, on a continuum of intervention levels (for instance decision making assistance, co-decision making, decision making representation, informal support, to support people in maximising their decision making capability.

3. clarify the law for carers who take on responsibility for persons who need help in making decisions.

4. The NAI welcomes that the Bill will incorporate provisions relating to Advanced Care Directives which will be provided by the Department of Health.

The NAI welcomes the overall guiding principles of the legislation:

-that there is a presumption of decision making capacity

-no intervention will take place unless it is necessary having regard to the needs and individual circumstances of the person

-that a person will be treated as unable to make a decision only where all practicable steps to help that person make a decision have been taken without success

-that any act done or decision made under the Bill must be done or made in a way which is the least restrictive of the persons rights and freedoms

-any act done or decision made under the Bill in support of or on behalf of a person with impaired capacity must give effect to his or her will and preferences

 The NAI signed up to the following principles to inform capacity legislation along with a number of other organisations including Amnesty, Mental Health Ireland and the Alzheimer Society of Ireland.

1. Supporting people to make decisions must be central to the approach and vision of this law. There should be a presumption of capacity by all.
2. The "will and preferences" of the individual rather than the principle of "best interests" should be placed at the heart of this legislation.
3. The courts are not an appropriate forum for this issue. A specialist, multi-disciplinary body should be established as the independent body to support people based on their will and preferences.
4. Supports such as advance care directives (or "living wills"), advocacy and peer support, offer cost effective and human rights compliant options.
5. This legislation should introduce a regime of supports. Only as a last resort, when all other supports have been exhausted, should a decision be taken on someone's behalf based on the best understanding of their will and preferences.
6. There should be robust and effective safeguards and monitoring systems.

NAI will examine the legislation in detail in terms of its compliance with principles before issuing a further response to its membership.

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